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Contents

Topics Page

❖ Origin, Nature and Development of International law 02

❖ Relationship between International Law and State Law 14
❖ Sources of International Law 19
❖ Subjects of International Law 23
❖ Asylum and International Law 31
❖ Extradition and International Law 36
❖ Diplomatic Immunities under Int. Law 41
❖ Law of Sea 51
❖ Recognition of States 59
❖ Law of Treaties 69
❖ International Humanitarian Law 79
❖ Settlement of International Disputes 94
❖ Use of forces/Intervention 102
❖ State Jurisdiction 107
❖ State Responsibility 116
❖ Law of Neutrality 123

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Topic#01 Origin, Nature and Development of International Law

Outline
• What is Law
• Defining International Law
• Evolution of International Law
o Development of International Law in Ancient Phase
▪ Contribution of Egypt Pharaohs
▪ Contribution of Greeks Era
▪ Contribution of Roman Era
▪ Contribution of Muslims
o Development of International Law in Middle Ages
▪ Renaissance of Europe
▪ Discovering of Sea-routes
▪ Regulation of Sea-trade
▪ Cannon Shot Rule
o Development of International Law in Modern Era
▪ Treaty of Westphalia - 1648
▪ Hugo Grotius: Father of Law of Nations
o 18th Century and three School of Thoughts.
▪ Naturalist school of thought
▪ Positivist school of thought
▪ Contribution of Grotians
o Development of International Law in 19th Century
▪ Congress of Vienna - 1815
▪ Declaration of Paris - 1856
▪ Geneva Convention - 1864

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▪ Hague Conventions of 1899 and 1907

o Development of International Law in 20th Century
▪ League of Nations – 1919
▪ Treaty of Locarno - 1925
▪ Kellogg Briand Pact - 1928
▪ Geneva Convention - 1929
▪ Second World War - 1939
▪ Establishment of United Nations.

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History and Evolution of International Law

Before tracing out the roots of international law, let first define what actually law is;

“Law can be defined as the rules or code of conduct that are essential for running the state
affairs”.

International Law

International law, in simple words, can be defined as “the code of conduct on the
basis of which states interact with each other or by which a state interact with
international community”.

International Law in the words of Prof. Kelsen

He defines international law in the following words;

“International law or the law of nations is the name of the body of rules which
according to usual definition regulate the conduct of the states and their
interaction with one another”.

Evolution of International Law

In beginning of the world, human beings used to live in caves. They feed on leaves
and uncooked food. Slowly and gradually, the trend got change and people started to live
together as family. They learned the technique of igniting fire by colliding stones with each
other. Later on, as the population grew and the process of evolution moved forward, concept
of village came into being. Further growth in population resulted in the establishment of city
states. The time when human beings lived together and their interaction increased, a code of
conduct was needed in order to regulate their dealing. Resultantly, some rules and norms
were developed which have now been replaced by the state laws.

Similarly, when sea routes were discovered in middle ages, people from different
areas and continents moved across the world, particularly for trade purposes. Again their
movement and interaction with other localities required rules and regulations. This need for

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regulating international interaction resulted in a gradual formulation of international law.

Today we are living in post-modernism and no any state can live in isolation. The
reason being is that each and every state is dependent on other states for some of her needs.
Dealing and interaction at international level demanded international rules so, has the
international law been developed from time to time in centuries.

The evolution international law is usually divided into three major phases. Each phase
has its own contributions to it.

First Phase: Commonly Known as Ancient Phase

Ancient phase is considered as the earliest phase in development of international law.

It starts from the era of Egypt Pharaohs and lasts till the Roman Era and Muslims
civilization. Ancient phase is further divided into four sub phases:

1. Contribution of Egypt Pharaohs

In 1400 B.C, king Ramesis-II of Egypt concluded a treaty of peace, extradition and
friendship with king of Cheta. The main points of this treaty were;

➢ Exchange of Envoys
➢ Extradition of Refugees
➢ Recognition of sovereignty over certain areas

All the three points of discussion in that treaty are today the most important subjects
of international law.

2. Contribution of Greeks:

It is clear from the study of ancient history that when most of other states of the world
were backward and less civilized, the Greek civilization was quite advanced and the Greeks
had achieved great advancements in different fields. Socrates, Plato, Aristotle and other
philosophers of Greece enlightened the world through their ideas and philosophies.

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Greeks lived in small city-stats. The mutual relation of these states were regulated and
governed by some definite rules and principles. For instance,

1) They had formulated definite laws of war and peace.

2) They used to resolve their disputes through arbitration.
3) Prior declaration was made before the commencement of war.
4) There was also provision for exchange of prisoners of war but there was a custom of
taking ransom for the release of some types of prisoners.

The Greek had formulated many laws relating to war. Oppenheim has rightly
remarked that the Greeks had shown to the world how sovereign states could live in mutual
cooperation with each other like a single community.

3. Contribution of Romans

Although, modern international law is ordinarily regarded as dating from the 16th and
17thcenturies, it cannot be denied that the Romans contributed much to the development of
international law. In its early period, Rome was a small city-state and had relations with
other states. These relations were based on the rules of international law. Subsequently, the
Roman Empire greatly expanded yet the Romans always considered themselves bound by
laws. They, for the first time, provided the right of sue to the citizens of other states in each
their respective courts

Romans deserve the credit for developing the laws of war. According to them there
were two types of war - Just and Unjust. Main grounds of waging just wars were;

a) Attack on Roman territories;

b) Disregard or the violation of privileges of ambassadors;
c) Contravention of treaties;
d) Assistance to enemy states by friendly state of Rome.

According to Romans, modes of termination of war were;

i) Through treaty of peace.

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ii) And through conquest and innovation of the conquered territories.

Similarly, the Romans had divided the treaties into three categories;

i) Treaty of Friendship; ii) Treaty of Alliance; and iii) Treaty of Hospitality.

The Romans strictly adhered to the provisions of the treaty and in their view prior
intimation was necessary for termination of treaties. Thus the Romans made significant
contribution in the development of international law.

Moreover, the maxim, “Pacta Sunt Servanda” is also a contribution of this age.

4. Contribution of Muslims.
The holy Prophet of Islam set very good examples of international approach.
Ambassadors were treated well, letters were written and messenger or special envoys were
sent to neighboring states. War with a neighboring country was avoided when there was
news of hostile preparation at boarders of Islamic state. War prisoner were treated in an
honorable manner. There are all principles present in Islamic teachings which are necessity
of international law.

Second Phase: Also called as Middle Ages

Second phase is an era of 9th century to 16th century. It is also called as “Middle
Ages”. This era is characterized by the struggle of Protestants against Catholics. Entire
Europe, during this era, shifted from God-centric to state/science-centric. Martin Luther King
came and the reformation of Europe took place. It was the time when sea routes were
discovered. Vasco de Gama discovered sea route to India, Captain Cook to Australia and
Columbus discovered USA.

1. Regulation of Sea-routes/trade

When sea-routes were discovered, trade took place between different states. The trade
contributed to the growing importance of seas and sea routes. Regulation of sea-routes
became mandatory resulting in publishing of many books, comprising rules related to sea-
trade. Some of the prominent books were:

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➢ Maritime laws
➢ Lex Mercatoria
➢ English black book of admiralty

The concept that high sea will be no man’s land has its roots in that era.

2. Cannon Shot Rule

Sea is very important because natural resources and precious metals are found in it.
Its importance further increased after the discovering of sea routes and trade initiation.
Control of sea routes increases the role of a state in world affairs. Moreover, it also is very
important from the perspective of naval forces power.

Some states, in the past, started occupying seas, adjacent to their territorial lands.
These coastal states claimed their exclusive right on the entire seas adjacent to their
boundaries. Resultantly, wars were fought between the states to occupy maximum waters
near their borders and enjoy their rights over it. Some of the states extended their right over
the waters up to 100 NM and some even to 200 NM.

This competition for controlling water created a need for law. First ever rule
regarding the limitation of territorial waters is Cannon shot rule. Cannon was actually coastal
artillery. The states used to shot a fire by it while fixing it on the coast and the range of that
fire meant the range of territorial waters of that particular state. Initially, its range was 3NM.

Third Phase: Generally termed as Modern Age

Third phase (modern age) emanates from 17th century and lasts till today. Great
developments to international law have been made during this period. For instance;

1. Treaty of Westphalia – 1648.

Treaty of Westphalia, concluded in 1648 is a land mark treaty in the history of

international law. After the division of religion and politics in Europe, the government

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system was entirely changed. However, unfortunately, a 30year long war was started. To end
the war, this treaty was concluded which resulted in;

➢ Breakup of Feudal Structure

➢ Balance of Power
➢ Emergence of modern nation states
➢ Concept of Sovereignty

2. Hugo Grotius

Hugo Grotius is known as the father of modern international law. He is famous for his
idea of “just war”. In his words, war is a necessary evil and a pre-requisite for evolution and
development but war should be just war. By just war he meant that there should be
discrimination between combatants and non-combatants.

He wrote two famous books during his life time.

➢ The free sea (1609)

➢ On the law of war and peace (1625)

18th Century and the three School of Thoughts

Eighteenth century bears witness to the hot debate of three schools of thoughts. These
are;

➢ Naturalist School of Thought

Naturalists believe that every law is divine and we cannot alter it. They opine that
international is part of the law of nature and we cannot separate them. The pre-requisite of a
law according to them is that a law should be considered a law only if it is divine and
universally beneficial for all human beings. For instance, the revolution of planets around the
sun is an example of natural law.

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➢ Positivist School of Thought

Positivists are contrary to naturalists and they believe on man-made laws. Main
argument of positivists is that a law will be considered a law only if it has been made through
right the process and has been enacted by the right person/authority. They present treaties as
one of best example of law.

➢ Viewpoint of Grotians

Grotians are the followers of Hugo Grotius. They are standing just between the earlier
two schools of thoughts and support partly not entirely both naturalist and positivist
viewpoints.

Development of International Law during 19th Century.

1. Congress of Vienna – 1815.

The Congress of Vienna - 1815 was a land mark event for the development of
international law. It was the first important European conference where many rules of
international law were formulated. Napoleonic wars greatly destabilized international
structure. The wars provided setback to the development of international politics. After his
death, in 1815 A.D, Congress of Vienna was convened to shape up future of the world
politics. Main discussion points were;

➢ Sovereignty of one another

➢ Balance of power
➢ Nationality of citizens
➢ Immunities of diplomats

Soon after that, Belgium and Switzerland were declared as neutral states in order to ensure
the balance of power.

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2. Declaration of Paris – 1856.

The Declaration of Paris was a law making treaty in which many rules relating to
naval war fare were laid down. Attack on undefended people during naval war was
prohibited. It was also said that any ships could be sunk or otherwise destroyed during war
but before doing so, precaution should be taken to save life of the crew of ship.

3. Geneva Convention – 1864.

Many rules relating to wounded and sick members of the armed forces during land
warfare were laid down in Geneva Convention of 1864. Killing of wounded soldiers were
prohibited and rules were made for providing certain facilities to them.

4. Hague Conventions of 1899 and 1907.

Hague Conferences of 1899 and 1907 are rightly reckoned as great land mark relating
to the development of international law. They resulted in the adoption of several conventions
on various subjects of international concerned. These conventions emphasized on the
settlement of international dispute through peace means. Many rules of international law
relating to land war fare and naval war fare were formulated bombardment over undefended
people were declared illegal. Endeavour was also made to determine the limits of armaments
and to achieve ultimately disarmament. Duties and rights of neutral states during naval war
were also clearly laid down. Yet another great contribution of the Hague Conferences was
the establishment of the Permanent Court of Arbitration. It was a land mark event in the
history of the development of international law.

Development of International Law during 20th Century.

Twentieth century is the most dramatic century in the history of human beings. This
century has witnessed two World Wars plus two International Organizations established for
the purpose of bringing peace to the world. In addition, this century has also witnessed the
production and application of nuclear weapons for the first time in human history.

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1. League of Nations – 1919.

After the First World War, the nations of the world felt the need of an international
organization which might be able not only to regulate the mutual relations among states but
could also prevent future wars. The League of Nations was established under the Treaty of
Versailles, 1919. The League of Nations defined the war into two types – Just and Unjust. It
imposed certain restrictions upon the nations’ right to resort to war at their will. It was laid
down that a member of the league going to war in violation or disregard of the provisions of
the Covenant would be deemed to be the enemy of the whole League of Nations.
In addition, another great achievement of the League of Nations was the
establishment of the Permanent Court of International Justice which contributed much to the
progressive development of international law.

2. Treaty of Locarno – 1925.

France, Britain, Germany, Italy and Britain concluded the Treaty of Locarno whereby
they undertook the obligation of not using force in the settlement of their boundary disputes.
The parties to the treaty also expressed their resolve to their disputes through peaceful
means. Germany, however, refused in 1936 to follow the provisions of this treaty.

3. Kellogg-Briand Pact – 1928.

This pact was signed by fifteen states in 1928. Signatory states included France,
the United States, the United Kingdom, Ireland, Canada, Australia, New Zealand, South
Africa, India, Belgium, Poland, Czechoslovakia, Germany, Italy and Japan. In this pact the
signatory states promised not to use war to resolve “disputes or conflicts of whatever nature
or of whatever origin they may be, which may arise among them. They renounced war as an
instrument of their national policy for the settlement of international disputes. It was a very
significant international event for legal regulation of war.

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4. Geneva Convention – 1929.

This convention was signed by 47 states of the world. Many rules relating to the
treatment of prisoners of war were laid down in this convention. Reprisals against prisoners
of war, cruelty towards them and collective penalties against them were prohibited. Rules
were also formulated for providing medical and other facilities to the prisoner of war.

5. Second World War.

Almost all the afore-mentioned rules of international law were flagrantly violated
during the Second World War which turned into a Total ‘War’. It, however, sowed the seeds
of a future world organization. Devastating affects of the once more compelled the nations of
the world to make afresh attempts to establish an international organization which may
ensure lasting peace to the world. Consequently, the Second World War indirectly led to the
establishment of United Nations Organization.

6. Establishment of United Nations - 1945

United Nations organization bears utmost importance in the development and

implementation of international law. It has added significantly to international law and has
changed entirely the nature of international law by bringing it in documented form. Some of
its important outcome is;

➢ Universal Declaration of Human Rights – 1948.

➢ Vienna Convention on Diplomatic Relations – 1961.
➢ Vienna Convention on Consular Relations – 1963.
➢ Vienna Convention on Law of Treaties – 1969.
➢ UN Convention on Law of Sea – 1982.

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Topic# 02: Relationship b/w International Law and State Law

Outline

❖ Introduction
❖ Various theories
✓ Monism
✓ Dualism
✓ Specific adoption theory
✓ Transformation theory
✓ Delegation theory
❖ Conclusion

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Relationship b/w International Law and State Law

In order to understand international law properly, it is necessary to understand the

relationship between international law and state law. Generally, state law regulates the
conduct of the persons living within its territory whereas international law regulates the
relations among states. In the modern period, in view of the continuous development of
international law it is not proper to say that international law regulates only the relations
among states; in fact international is a law which regulates the relations of members of
international community. Following are some of the prominent theories which explain the
relationship between international law and state law.

1. Monism
2. Dualism
3. Specific Adoption theory
4. Transformation theory
5. Delegation theory

1. Monism

The exponents of this theory emphasize on the scientific analysis of internal structure
of law. According to them, law is a unified branch of law, no matter whether it applies to one
person or other entities. According to monist belief, international obligations and municipal
rules are two facets of same phenomenon and have derived ultimately from one basic norm.

According to exponents of Monism, international law and state law are intimately
connected with each other. Both are the two branches of unified knowledge of law applicable
to human community in some or the other way. In view of the monistic writers, in the
ultimate analysis of law we find that man is at the root of all laws. All laws are made for men
and man only is the ultimate analysis.

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2. Dualism

In the view of dualist writers, international law and state law are two separate laws.
For example, according to the soviet view, “international law and municipal law comprise
two separate principles of law and remain in no hierarchical dependence upon each
other”. The monist view of law is part of philosophy according to which totality is a single
structure. Differences between the two schools are significant and the dualist considers that
municipal law differs markedly from international law. Triepel has pointed out the following
differences between international law and state law.

• Regarding Subject: Individual is the subject of the state law, whereas state is the
subject of international law.
• Regarding Origin: Origin of state law is the will of the state whereas origin of the
international law is the common will of the state.

Criticism

1) It is not correct to say that international law is binding only on states. In the modern
period, international law is binding not only on states but individuals and some non-
state entities as well.
2) The conception of state will as the source of state law is incorrect. In fact, will of a
state is nothing but the will of the people who compose it.
3) It is not correct to contend that the source of international law is the common will of
the state. There are some fundamental principles of international law which are
binding upon states, even against their will.

Whether Monism or Dualism is the correct theory?

On the basis of above discussion, monism appears to be the correct theory but no
theory can be complete in itself and it is not possible to include all elements in it. The
practice of states indicates that sometimes there is the primacy of international law and
sometimes there is the primacy of municipal law and sometimes there is the mixture of
different legal systems. For example in Greco-Bulgarian communities case, the permanent

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court of international justice held, “it is a general accepted principle of international law
that in relations between powers who are contracting parties to a treaty, the provisions of
municipal law cannot prevail over the treaty”. On the other hand, when the municipal courts
find that the conflict between the international law and municipal law is of such nature that
cannot be avoided, in that case they give primacy to municipal law.

3. Specific Adoption Theory

According to the positivist, international law cannot be directly enforced in the field
of state law. It is necessary to make its specific adoption. In short, international law can be
applied in the field of municipal law only when municipal law either permits it or adopts it
specifically.

Criticism

The view is not correct because there are many principles of international law which
are applied in the field of municipal law without specific adoption.

4. Transformation Theory

The exponents of this theory contend that for the application of international law in
the field of municipal law, the rules of international law have to undergo transformation.
Without transformation they cannot be applied in the field of municipal law.

Criticism

This theory is based on consensual theory which has already been criticized. It may
also be noted that it is not necessary for all treaties to undergo transformation for their
application in the field of municipal law. There are several law-making treaties which
become applicable to the states without undergoing the process of transformation. This
theory has been severely criticized by the critics. “It is therefore incorrect to consider the
transformation from one to other is materially essential”.

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5. Delegation Theory

As pointed out earlier, transformation theory has been severely criticized by a number
of jurists. The critics of transformation theory have put forward a new theory called
delegation theory. These critics point out that the constitutional rules of international law
permit each state to determine as to how international treaties will become applicable in the
field of state law. Thus, in fact, there is no transformation nor is there any specific adoption
in every case. The rules of international law are applied in accordance with the procedure and
system prevailing in each state in accordance with its constitution.

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Topic# 03: Subjects of International Law

Outline

➢ Short Background
➢ Theories about subjects of International Law
o Oppenheim’s Theory
o Kelsen’s Theory
o Latest Theory
➢ Place of Individual in International Law

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Subjects of International Law

Ordinarily international law deals with the rights and duties of the states. Generally it
is the states that enter into treaties with each other and are thus bound by its provisions.
However, it does not mean that other entities or individuals are outside the scope of
international law. Today in view of developing and changing character of international law,
international law applies upon individuals and certain non-state entities in addition to states.

Various theories regarding subjects of International Law

Following are three main theories regarding subjects of international law. These
theories are actually a debate about who is and can be the subject of international law.
According to modern view, states, individuals and non-state entities all qualify to be the
subjects of international law.

1. Only states are the subject of International Law

Some jurists have expressed the view that only states are the subject of international
law. In their view, international law regulates only the conduct of the states so therefore, we
can say that states alone are the subject of international law. Prof Oppenheim is one of the
chief exponents of this theory. He is of the view that individuals are not and cannot be
subjects of international law.

Criticism

This view has been subjected to severe criticism by jurists. The theory fails to explain
the case of slaves and pirates. The rules related to human rights have been codified for
individuals. Similarly, asylum is granted by states to individual. Extradition is also the case
of individual not a state. Moreover, when an agent of United Nations suffers injury during
performance of his duty, the concerned state is held responsible and has to pay compensation
for that injury. On the basis of all these arguments, court rejected the proposition that only
states are the subject of international law.

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2. Individuals are the only subjects of International Law

This theory is contrary to the above. Certain jurists have expressed the view that only
individuals are the subjects of international law. Chief exponent of this theory is Prof.
Kelsen. He contended that under international law the duties of states are ultimately the
duties of individuals. Truly speaking there is no difference between state law and
international law. In his view, both laws apply on the individuals and they are for individual.
The only difference between them is that state law applies on individuals intermediately
whereas international law applies on individuals mediately.

Criticism

Kelsen’s views appear to be logically sound. But so far as the practice of states is
concerned it is seen that the primary concern of international law is the rights and duties of
states. Statute of International Court of Justice also adheres to the traditional view that only
states can be parties to international proceeding.

3. States, individuals and certain non-state entities are the subjects of

International Law

The third view not only combined the first and second views but went a step ahead to
include international organizations and certain non-state entities as subjects of international
law. This view undoubtedly appears to be far better than the first two views. Following
arguments may be put forward in support of this view.

a. In Danzing Railway Case, Poland refused to provide facilities to the officials of

the company. The Permanent Court of International Justice rejected the contention
of Poland and ruled against Poland.
b. 1949 Geneva Convention on the Prisoners of War.
c. The Genocide Convention of 1948.
d. The Nuremberg and Tokyo tribunals are non-state entities and working for
individuals.

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Conclusion

It is clear from the above discussion that today international law regulates the conduct
and relations of not only the states, but also of individuals, international organizations and
certain other non-state entities as well.

Place of individuals in International Law

As pointed out earlier, individuals are also treated to be the subjects of international
law although they enjoy far lesser rights than states under international law. In the recent
times, several treaties have been concluded where in rights have been conferred and duties
have been imposed upon the individuals. In modern times, individuals exhibit important
place in international law.

Espionage?
The position of espionage under international law is very peculiar. On one
hand, international law recognizes espionage during land warfare; on the other
hand, it also recognizes that the punishment can be awarded to those who are
caught or apprehended while spying. According to laws of land warfare as
recognized in America, no discrimination should be made between men and women
in regard to the punishment awarded to spies.

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Topic# 04: Sources of International Law

Outline

➢ Types of Sources
o Material source
o Formal source
➢ Sources of International Law
o International Treaties
o Customs and Usages
o General Principles
o Judicial Decision
o Juristic Works

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Sources of International Law

Before going towards identifying sources of international, let’s first discuss that
sources are of two types.

I. Formal Sources

Formal sources are those legal procedures and methods for the creation of rules of
general application which are legally binding upon the addresses. For instance, in case of
Pakistan, the constitution of 1973 is a material source while the legal method or procedure
for becoming the president of Pakistan is a formal source. Similarly, Quran is the material
source while Sunnah is the formal source of Islamic Law.

II. Material Sources

It can be defined as “the actual material from which an international lawyer

determines the rules applicable to a particular situation”.

The term ‘source’ refers to the methods or procedures by which international law is
created. According to article 38 of statute of International Court of Justice following are the
sources of international law. Among these, first two i.e. international treaties and customs
and usages are called as primary sources while the rest are called as secondary sources.

a) International Treaties
b) Customs and Usages
c) General Principles of Law Recognized by Civilized Nations
d) Judicial Decisions
e) Juristic Works

1) International Treaties

In the modern period international treaties are the most important source of
international law. Article 2 of Vienna Convention on Law of Treaties (1969) provides that “a
treaty is an agreement whereby two or more states establish or seek to establish a

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relationship between them govern by international law”. Whenever, an international

tribunal decides an international dispute its first endeavor is to find out whether there is any
treaty between the parties governing the subject under dispute. If yes, the court delivers its
decision on the basis of the provisions of that particular treaty. Furthermore, International
treaties may be classified into two types.

i. Law-making Treaties

The contribution of law-making treaties is directly the source of international law.

Law making treaties perform similar function at international arena what legislature does at
domestic level. These are the means through which international law can be adapted in
accordance with changing time. For instance, Vienna Convention on Law of Treaties, 1969.

ii. Treaty Contracts

As compared to law-making treaties, treaty contracts are binding only on the parties
to treaty. It also helps in formation of international law through the operation of principles
governing the development of customary rules.

2) Customs and Usages

It is regarded as one of the most prominent source of international law. Article 38(b)
of statute of ICJ recognizes an international custom as an evidence of general practice of
international law. Customs, when practiced for a long time become a law at last.

Difference between the Customs and Usages

I. Customs are consistent A. Usages are not consistent

II. Customs are universal B. Usages are particular
III. Custom is recognized by law C. Usage is not recognized by law
IV. Custom begins where usage ends D. Usage is the initial state of custom
V. Customs are consistently repeated E. Usages are not often repeated

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For example, the envoys were given immunities in the past as a custom but now it has
become law.

Features of Customs

➢ Long duration
➢ Uniformity and consistent
➢ Generality of practice
➢ Jus Cogens. (compelling law)

3. General Principles of Law recognized by Civilized Nations

Those principles which are generally adhered by states although they are not codified
are also taken as source of international law. In modern period it has become an important
source. This source helps international law to adapt itself according to the changing times
and circumstances.

Some general principles are;

➢ Self defense concept is significant example of general principle of law.

➢ No one can be a judge himself if he is a party to a dispute because judge listens to
both parties
➢ Pacta Sunt Servanda was a general principle on the basis of which diplomats were
granted immunities.

3) Judicial Decisions

It is another important source of international law. According to article 59 of Statute

of ICJ “the decision of the court will have no binding force except between the parties and
in respect of that particular case”. Although, earlier decisions are not binding on the court
itself and court is free to deviate from its previous decision, however usually it do not. For
example in Anglo-Norwegian fisheries case, ICJ delivered the decision in favor of Norway.

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4) Juristic Works

Although the juristic works are not independent source of international law, however
it can help in development of law. According to article 38(e) of ICJ, the works of highly
qualified jurists are subsidiary means of law. In the words of Justice Gray;

“Where there is no treaty and no controlling executive and legislative act or judicial
decision, result must be made to the customs and usage of civilized nations and as
evidence of those works of jurists and commentators who by years of labour, research and
experience have made themselves well acquainted with the subjects which they treat”.

So these were the sources of international law in view of article 38 of statute of I.C.J.

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Nature of International: Is International Law really a law or a Positive Legal

Morality?

In 18th century a British jurist, John Austin raised three very basic questions about the
nature and viability of international law and on the basis of these questions he actually
argued that international law is not really a law, instead it is a legal morality. His questions
were the following;

➢ He said that there is no sovereign in international law to ensure its implementation;

therefore, people do not follow it.
➢ The structure of legislation at international arena is also missing.
➢ There is no mechanism for interpretation of international law at international law to
make sure that it is universally beneficial.

His questions can be answered one by one in the following way.

1. Command of a Sovereign

Treaties are considered as an important source of international law. These treaties are
signed by sovereign of states, therefore, the sovereign of particular states implement it in
their respective territory. Hence, the command of sovereign is present. In addition, Security
Council, which is an important branch of United Nations, has the responsibility to ensure the
implementation of international law and recommendations of General Assembly.

Case Study: During Gulf War, when Iraq invaded Kuwait, a resolution was passed in
Security Council in which Iraq was directed to with draw its forces from Kuwait. However,
the then Iraqi President, Saddam Hussain refused to comply with the resolution.
Consequently, United Nations Peace Keeping Forces were deployed in Kuwait and Iraq was
compelled to with draw its forces and go back to its own country. It shows that the body of
Security Council is superior in nature and has the authority to restore peace and punish any
state violating international law.

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2. Concept of Legislation

As mentioned above that international treaties are sources of international law and are
signed by sovereign state. These treaties are formulated and concluded in very democratic
manner as members from multiple countries participate in it, give suggestions and then sign
it with free consent. It means that almost all states take part in making international rules and
regulations by sending their own respective representatives at different law making forums.
Moreover, the treaties only come into force once the legislative body (parliament) ratifies
any particular treaty. So the concept of legislation is also present in international law.

Case study: Vienna convention on diplomatic relations, 1961 is a brilliant example in this
regard. Member states of this convention took part in making and codification of rules and
regulations related to diplomatic relations and subsequently signed the document. Similarly
the laws related to seas were long disputed. Consequently, United Nations convened a
convention in 1982 by inviting all its member states and all the issues relating to waters were
resolved. Rules and regulations were developed and Law of Sea was codified. Currently seas
and oceans are governed according to that particular United Nations Convention on Law of
Sea, 1982. Moreover, all the disputes are now resolved according to the provisions of this
convention. It means that the second question of John Austin has now also been addressed
and we can say that international is a law not a legal morality.

3. Interpretation of International Law

At the time when John Austin raised the questions, international law was in its
embryonic stage. Now we have International Court of Justice, Permanent Court of
International Arbitration, Hague Tribunal, Nuremberg Tribunal, Tokyo Tribunal and all the
other institutions which are required in any system in order to carry out the task of
interpretation of laws. The existence of all these multiple institutions is a proof of the
presence of a broad and well defined judicial structure at international plain. These all bodies
are used for the interpretation of international law and so these all bodies are playing their
due role in development of international law.

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Moreover, whenever there is a dispute between two states and a case is submitted in
international Court of Justice. The first endeavor of the court is to find out if there is any
treaty on that particular issue between the respective states. If yes, the court delivers their
decision on the basis of the provisions of the treaty. That is what the judges interpret the
provisions of the treaty and performs the functions of interpretation of law.

On the basis of above discussion, we can completely reject the notion of John Austin
because with the passage of time the enforcement mechanism of international law is
improved and all of his three concerns have been rightly addressed.

Deceit?
The position is different in regard to the deceit which is different from
stratagem or ruses of war. According to Hague convention, unauthorized use of
flag or emblem of the armed forces has been prohibited. Similarly, flag of peace
or emblem of Red Cross cannot be used to deceive the enemy. This is contrary
to international law.

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Topic# 05: Asylum and International Law

Outline

❖ Origin of Asylum
❖ Definition of Asylum
❖ Guidelines from UNO
❖ Types of Asylum
o Territorial Asylum
o Extra-territorial Asylum
❖ Grounds of asylum
o Political
o Military
o Religious
o Human rights

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Origin of Asylum

Revolution came in France on July 14, 1789. People of France stood for liberty,
fraternity and equality. After materializing a successful revolution, the people of France
announced that “all those people who are politically and on religious basis prosecuted in
their own respective countries and they want to come to France, we will warmly welcome
them”. With that they actually laid the foundation of the concept of asylum.

Asylum involves two things;

o A shelter which is more than temporary refuge.

o A degree of active protection on the part of authorities which have control over the
territory of asylum.

Definition of Asylum

“The protection which a state grants on its territory or in some of her place under
the control of certain of its organs to a person who comes to seek it is known as asylum”.

The person who seek asylum is termed as “Asylee”.

Right to Asylum

According to article 14 of Universal Declaration of Human Rights 1948, “everyone

has a right to seek and enjoy in other countries asylum from prosecution”.

Guidelines from United Nations

According to a the resolution adopted by General Assembly on December 14, 1967;

✓ When a person requests for asylum, his request should not be rejected or if he enters
into the territory of any state, he should not be expelled but when a large number of
people request for asylum, it may be rejected on the basis of national security of its
own people.

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✓ If any state feels difficulty in granting asylum, it should consider the appropriate
measures with the feeling of international unity through medium of individual states
or United Nations.
✓ When a state grants asylum to the fugitives, other states should respect it. Example is
the case of Molvi Fazal Ullah between Pakistan and Afghanistan.

Types of Asylum

There are major two types of asylum.

4. Territorial Asylum

When a state grants asylum to a person on its own soil and within its own territory, it
is called as Territorial Asylum. For example, Switzerland has granted asylum to Bar-
Hamdagh Bugti from Pakistan. Adolf Eichmann was granted asylum by Argentina. He was a
minister for death in cabinet of Hitler.

In 1967, United Nations General Assembly unanimously adopted a declaration on

territorial asylum. After that, another conference named as United Nations Conference of
Plenipotentiaries on Territorial Asylum was held in Geneva from January 10 to February 4,
1977. This conference was attended by 92 countries.

5. Extra-territorial Asylum

Extra territorial asylum is granted by a state outside its territory e.g. in its embassy or
in public vessels. It may be further classified as;

a) Asylum in Foreign Legates

When a state grants asylum to someone in its embassy, it is called as asylum in

foreign legates. For instance, Julian Assange has been granted asylum by Ecuador in her
embassy in London. He is an Australian citizen by birth and founder of Wiki-Leaks. He was
charged with the harassment of a Swedish woman. Thereon, he went to Ecuadorian embassy
where he was granted asylum.

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Reference may also be made to Haya Dela Torra’s case. He was a Peruvian citizen
and was charged with rebellion. Columbia granted him asylum in her embassy in Peru.
Asylum may be granted in embassy in three exceptional cases.

o As a temporary measure to individuals who are physically in danger from mob

violence or in case of fugitives having fear of government.
o It is granted in those states where asylum is well established, long recognized local
binging system.
o Asylum may also be granted where there is a special treaty between the territorial
state and the state of legation concerned
.
b) Asylum in Consular Premises

Asylum may also be granted in consular premises. Moreover, there is no difference

between asylum granted from an embassy and asylum granted from a consulate. Both can be
requested for asylum depending upon the proximity and both have the authority to grant
asylum.

c) Asylum in Premises of International Institutions

Asylum may also be granted in premises of international institutions. For example is

the case of Najeeb Ullah in Kabul. He got asylum in the office of United Nations in Kabul,
Afghanistan.

d) Asylum in War Ships

War ships of any country can also grant asylum. The captain of a ship will
communicate with the home state and upon positive response, asylum will be granted to a
person. Merchant ship cannot grant asylum to a person because they are not immune from
the local jurisdiction of a state.

Grounds for Asylum

Asylum is generally granted on the basis of the following four grounds.

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a. Political Ground

Asylum is granted to a person on this ground if he has committed a political crime.

Example is the case of Re-Castioni. He was a Swiss national who was charged with the
murder of political consul. U.K granted him asylum.

b. Military Ground

Asylum is also granted on this ground. In Gulf War, two sons-in-law of Saddam
Hussain went to Jordan and got asylum over there. They were charged of military defection.

c. Religious Ground

Asylum may also be granted on this ground. For example is the case of Salman
Rushdi. He is an Iranian national. He wrote a book with the name “Satanic Verses” thus
committing a religious crime. He was granted asylum by U.K. Later on, after Khomeini’s
revolution in Iran, his extradition was requested but refused by British government.

All the above three crimes are Non-extraditable crimes.

d. Human Rights Ground

Asylum is also granted on this ground. If human right/s of an individual is not secure
in any country, he or she can request for asylum from another country. Recent example is the
case of Malala Yousafzai. United Kingdom granted her asylum on this ground because her
life was in danger in Pakistan and already has faced an attempt to murder.

Although everyone has a right to seek asylum yet there is no correspondence duty of states to
grant asylum.

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Topic# 06: Extradition under International Law

Outline

✓ Basis of Extradition
✓ Concept of Extradition
✓ Viewpoints of Jurists
✓ Rules of Extradition
o Principle of Double Criminality
o Attentat Clause, 1856
o Russian Project, 1881
o Swiss Act, 1892
o Rule of Specialty
✓ Non Extraditable Crimes

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Basis of Extradition

Generally each state exercises complete jurisdiction over all persons living within its
territory. Sometimes, there may be a case that a person commits a crime in one state and
somehow he/she manages to get out of that state and enter into the territory of another state
and gets asylum in that state. In such a situation, the state affected finds itself helpless to
exercise jurisdiction over that person. The inability of a state to exercise its jurisdiction
within the territory of other states would seriously undermine the maintenance of law and
order if there were no cooperation in the administration of justice. In that condition, the
affected state requests for extradition of the guilty.

Extradition is actually the reverse of asylum.

What is Extradition?

“Extradition is the delivery of an accused or convicted individual to the state on

whose territory he is alleged to have committed or to have been convicted of a crime”.

According to Starke;

It is a process based upon a treaty or reciprocity of an offender.

According to Hugo Grotius;

“It is the duty of a state either to punish the criminals or to return them to the states where
they have committed crime”.

Reference may be made to the case of Aimal Khasi. He was a Pakistani citizen who
killed two personnel of CIA in Virginia in 1993. Pakistan extradited him to USA in 1997.

According to Starke and ICJ;

➢ Extradition is the right of the state; however international law does not impose duty
on the state to extradite a person to another state.
➢ Extradition always depends upon a bilateral treaty made between states.

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➢ Foreigner law does not apply on extradition, it only applies on expulsion.

➢ For arresting a person, one should have the warrant of that person and after arresting,
he/she should be handed over to the authorities of that particular state.

Rules for Extradition

Following are some of the rules which are observed by the courts of any state before
extraditing a person to another state.

1) Principle of Double Criminality

It means that the crime for which extradition is claimed should be a crime in both the
countries (the country which is claiming and country which is extraditing). Extradition will
be made if this principle is observed and the crime is crime under the laws of both the states.

2) The Attentat Clause

In 1854, French foremen, Celestin Jacquin attempted to murder of King Napoleon III
but failed. After that he left France and got asylum from Belgium. His extradition was
requested but the courts of Belgium refused his extradition. Therefore, Attentat Clause was
formulated for that purpose by Belgium in 1856. It provides that the murder of Head of
Foreign Government and of his family member should not be considered as a political crime.

3) Russian Project 1881

Emperor Alexander II was murdered in 1881. Consequently, in the same year, Russia
called a conference at Brussels to consider the proposal that murder or attempt to murder
should not be considered as a political crime. However, Britain and France refused to attend
the proposed conference, therefore, the conference failed to produce something.

4) Swiss Act 1892

Article 10 of the Swiss act 1892 provides that political criminal will not be extradited.
It further says that if the courts of a country fails to recognize the crime of a person that

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whether its nature is political or not, then the parliament or congress of that particular state
will decide.

5) The Rule of Specialty

An accused is extradited for a particular crime. The rule of specialty says that the
country which gets back the criminal is entitled to prosecute him only for that crime on the
basis of which he is extradited. He cannot be prosecuted for the crimes other than the one on
the basis of which his extradition has been made.

Non- extraditable Crimes

Following three crimes are non-extraditable crimes.

i. Political Crime

Extradition is not allowed for political crime. It was 1st started from French
revolution.

Case Study 01

Re Castioni was a Swiss national and was charged of murdering a member of council.
U.K refused his extradition because his crime was political in nature.

Case Study 02

Re Meunir was French and was charged of explosions in two cafes. U.K extradited
him because his crime was not political and he had killed civilians.

ii. Religious Crime

It is also a non- extraditable crime. For instance, the case of Salman Rushdi is a good
example. The reason for non extradition of Salman Rushdi was that religious crime is not a
crime in U.K and so has lost the Principle of Double Criminality.

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iii. Military Crime

Last but not the least military crime is also a non-extraditable crime. For example,
two sons in law of Iraqi dictator Saddam Hussain fled to Jordan during Gulf War. They were
granted asylum on the ground of committing a military crime. After war, their extradition
was demanded by Iraq but Jordan refused to extradite them.

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Topic# 07: Diplomatic Immunities

Outline

➢ Brief History
➢ Basis of Immunities
o Theory of Extra-territoriality
o Functional Theory
➢ Concept of High Commission and Embassy
➢ Diplomatic Agents
o Categories of Diplomatic Agents
o Functions of Diplomatic Agents
o Immunities of Diplomats
o Embassies are also Inviolable
o Waiving off Immunity of Diplomats
o Family and servants of Diplomats
➢ Consuls
o Classification of Consuls
o Functions of Consuls
o Immunities of Consuls
o Termination of Diplomatic Mission

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Brief History

Earlier when there was monarchy and empire system in the world, the emperors used
to send their envoys to each other. Most often, the envoys were killed in their way before
reaching to the desired destination. At that time it was decided to give safe passage and
respect to the envoys of each other states.

In 18th and 19th century, the states started to give more importance to diplomats. When
Napoleon was defeated and killed, Congress of Vienna was convened in 1815 to shape up the
future of the world politics after Napoleonic wars. In this convention, immunities of
diplomats were also discussed and some guidelines were produced. After that two other
conventions were convened in which rules regarding diplomatic immunities were codified.

▪ Vienna convention on diplomatic relations, 1961.

▪ Vienna convention on consular relations, 1963.

Basis of Diplomatic Immunities

Before discussing the immunities provided to diplomats it is necessary to know as

what is the basis of these immunities and privileges.

1. Theory of Extra- Territoriality

According to this theory the staff of embassy belongs to sender state and is out of the
jurisdiction of receiving state. In simple words, the laws of receiving state cannot be applied
on them. But this theory is criticized by many jurists. According to Professor Oppenheim, it
is not the true basis for immunities. Moreover, the Supreme Court of Australia has also
discarded this theory in 1971. In the afore-mentioned year, two citizens of Australia threw
some explosive material on the Soviet Chancery in Canberra. They were instantly arrested
and persecuted by the courts. During the trial they argued that since the Soviet Chancery is
outside the jurisdiction of Australia, therefore, we cannot be punished for this crime. At that
moment, the Supreme Court of Australia discarded this theory.

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2. Functional Theory

According to this theory, the immunities and privileges provided to the diplomats are
not because of the extra-territoriality but because of the special functions which they
perform. The functions of diplomats are very sensitive and critical in nature. They strive to
defuse the tensions and build friendly relations between states. Therefore, diplomats are
made immune in order to enable them to perform their functions properly. If the immunities
are not provided, they would not be able to play their crucial role during tense situations. In
fact, it is the true basis for providing immunities to diplomats.

Concept of High Commissioner and Ambassador

All the Common Wealth Countries use the concept/terminology of High Commission
and High Commissioner. While all the other states except members of Common Wealth
Organization use the words Embassy and Ambassador. There is no difference between the
two except the name.

Total number of Common Wealth Countries is 54. All those countries which
remained colonies of British Empire in the past (except Ravanda and Mozambique) are part
of the common wealth countries.

Diplomatic Agents

Diplomatic agents are the representatives of one state, working in the area of another
state for the purpose of negotiating some other specific task. According to article 14 of the
Vienna Convention on diplomatic relations, 1961, diplomatic agents can be classified as;

a. Ambassador or Legates

It is the representative of sender state in receiving state and is the top most diplomatic
slot in an embassy anywhere in the world. It is appointed by head of the state i.e. President of
the state.

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b. Minister or Plenipotentiary

It is a diplomatic agent of second category as compared to the ambassador in an

embassy. It is also important position in the embassy.

c. Charge d` Affairs

According to the Vienna Convention on Diplomatic Relations, 1961, it is third most

important slot in the embassy as a diplomatic agent.

Functions of Diplomatic Agents

According to article 3 of the Vienna Convention on Diplomatic Relations, 1961,

following are the functions of a diplomatic mission.

➢ Representing the government of sending state in the receiving state.

➢ Protecting the interests of sending state in receiving state and of its nationals, within
the limits permitted by international law.
➢ Negotiating government of receiving state.
➢ Communicating events with government of receiving states.
➢ Establishing social linkages by promoting friendly relations with receiving state.

Immunities enjoyed by Diplomats

One of the pillar s of modern international law is the diplomatic immunities of the
diplomats. Article 22 to 38 of Vienna convention is totally about the immunities of
diplomats. However, mutual consent is essential for establishing diplomatic relations and
immunities.

1. Personal inviolability of Envoys

Article 29 of the Vienna convention on diplomatic relations, 1961, provides that

diplomats are inviolable persons. They should be liable to any form of arrest or detention in
the receiving country. The receiving state shall treat him with due respect and dignity. If a
diplomat is attacked and insulted, it is considered as an attack on and insult of the state

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whose representative he is. However, diplomatic agents have a duty not to interfere in the
internal affairs of that state.

2. Immunity from Criminal Jurisdiction

Diplomats also enjoy immunities from criminal jurisdiction of the courts in receiving
country. However, it is generally believed that they will not violate the provisions of the law
where ever they are appointed. Case of Raymond Davis is a good example in this connection.
He killed two persons in Lahore and then claimed to be a diplomat. Later on, he paid
compensation to the family of victims.

Diplomats can lose their immunity in some specific conditions like if they are found
guilty of conspiracy against the state. For example in 1712, the ambassador of Sweden was
arrested in England on the charge of conspiracy against the king of England.

3. Immunity from Civil Jurisdiction

Diplomats are also immune from civil jurisdiction of the court. If a diplomat occupies
a piece of land, he cannot be persecuted for it. If a case is filed against a diplomatic agent, it
is not necessary for him to present himself personally in the court. It is sufficient for him to
send a message that he is a diplomat and is outside the jurisdiction of the court.

For example, in 1946, a French Minister for Bolivia was passing through New York
where a civil process was started against him in the court. He just sent a message to the court
that being a diplomat he is immune from the jurisdiction of the court and court dismissed the
appeal filed against him. According to article 40 of the Vienna Convention of 1961, the same
rule will apply on his family accompanying him or travelling alone to join him.

4. Immunity regarding Residence of Diplomats

The residence of a diplomatic agent is also immune and inviolable. If a person is

wanted by the police and he does not enjoy any immunity, then he should be handed over to
the police. However, personnel of Police or Law Enforcement Agencies cannot conduct a
raid on or enter into the residence of a diplomat for arresting a person.

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5. Immunity from being presented as a Witness

Diplomats enjoy immunity from being presented as a witness. They cannot be

compelled to come to court and give evidence. It any diplomatic agent himself waives his
immunity, then he may personally present himself in the court but in that case he will be
deemed to be within the jurisdiction of the court.

6. Immunity from Taxation

Article 34 and 36 of Vienna convention 1961 provides that diplomatic agent is

immune from all types of direct and indirect taxes e.g. income tax, wealth tax and property
tax etc.

7. Immunity from Police Rules

Diplomats are also immune from police rules of receiving state. However, for the
sake of establishing good relations with receiving state, they generally follow such rules.

8. Right to Worship

Diplomats have full right to profess their religion in their own way. The receiving
state has nothing to do with it and cannot dictate them in offering their religious rituals.

9. Right to Travel

In the view of article 26 of the Vienna Convention on Diplomatic Relations, 1961, a

diplomat can travel anywhere in the territory of receiving country except prohibited areas.
Receiving country cannot restrict the movement and travelling of a diplomat.

10. Freedom of Communication

Article 27 provides freedom to the diplomats to freely communicate with the capital
of their home state in connection with their functions and duties. The government or agencies
of receiving state cannot hamper the communication of a diplomat with his home country.
Freedom of communication is necessary for a diplomat in delivery of his functions.

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11. Immunity from Local and Military Obligations

According to article 35 of Vienna convention of 1961, diplomatic agents are also

exempted from all local and military obligations. They cannot be compelled to serve the
receiving state in any emergency kind of situation.

12. Immunity from Inspection of Personal Baggage

Article 32(2) provides immunity to diplomats from inspection of their personal

baggage, unless and until there are serious grounds for presuming that it contains some
prohibited material.

Embassies are also Inviolable

Embassies are also inviolable places as they are considered as outside the jurisdiction
of that state. The forces of receiving state cannot enter into area of embassy for arresting a
person or inspection of documents there. For instance is the case of Najeeb Ullah. He got
refuge in U.N office in Kabul. The recent case is of Julian Assange. He has taken asylum in
embassy of Ecuador in London. However, if there is clear evidence that any particular
embassy is involved in some anti-state activities against the receiving state; in that case
action can be taken against that particular embassy.

Case Study: In 1973, Pakistani forces conducted a raid on Iraqi embassy in Islamabad and
heavy explosives were recovered from there. The ambassador was declared as Persona-Non-
Gratia because he was found guilty of anti-Pakistan activities.

Can head of the state “Waive Off” a Diplomat’s Immunity?

Yes, head of the sending state can “waive off” the immunities of a particular
diplomat. For instance, there was a case in 1997, in which a Georgian diplomat killed a girl
in USA in a car accident. President of USA wrote a letter to the president of Georgia and
requested him for waiving off the immunity of that particular diplomat. Resultantly, the
diplomat was arrested and tried in the courts of USA for his crime.

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Family and Servants of Diplomats

Family and servants of a diplomat who are not nationals and permanent citizens of the
receiving state enjoy the same immunities which are enjoyed by a diplomat. The immunities
of servants are usually based on reciprocity.

For instance, son of a Brazilian diplomat went to a disco club in London and killed a
person over there. He was immediately arrested by the authorities and was put into jail.
However, he was released once it was confirmed that he is a son of a diplomat. The diplomat
was declared as P.N.G.

Can a Diplomatic Agent lose his Immunity?

Yes, a diplomatic agent can lose his immunity under the following circumstances;

o If a case is filed against him in the court, he should not go to the court and should
send a message that being a diplomat he is immune and is exempted from the law of
the state. If he presents himself in the court, he will lose his immunity.
o If a diplomat files a suit against somebody in the court it will mean that he has waived
off his immunity.
o If he presents himself as a witness in the court, he will lose his immunity.

Consuls

Consuls are the representatives of their states but they are not deemed to be
diplomats. Consuls are the staff of a consulate of state appointed in some other country.
Their functions are different from diplomats (i.e. the staff of an embassy). Moreover, they
enjoy far less immunities than diplomats (i.e. enjoy immunity only from civil jurisdiction of
the receiving state).

Classification of Consuls

According to the Vienna Convention on Consular Relations 1963, the consuls are
categorized as following;

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1. Consul General

Consul General is the first and top most categories in a consulate. He/she is generally
appointed in the main commercial cities. Consul General heads the consul office.

2. Consuls

It is the second most important slot in a consulate just below the Consul General.
Consuls are generally appointed in small cities or they assist the work of consul general.

3. Vice Consuls

Vice consul is a post of third category after Consul General and Consul and in some
states it is usually appointed by the Consul General.

4. Consul Agents

Consul Agent is the last important position in a consulate. Consul Agents are
appointed either by Consul General or in some cases even by Consul.

Functions of Consuls

❖ They protect the commercial interest of their respective states.

❖ They look after the shipping etc of their country.
❖ They look after the interest of their citizens and assist them in cases and for getting
passport etc.
❖ They also perform certain other functions for their citizens like registration of birth,
marriage and death etc.

Immunities of Consuls

Although the staff of a consulate does not enjoy all those immunities which are
provided to diplomats, some immunity is also conferred upon them.

✓ They enjoy immunity from civil jurisdiction.

✓ They cannot be arrested for small crime like violation of the traffic rules etc.

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✓ Consulates are also inviolable.

✓ They may be called on to attend as witness.

Termination of a Diplomatic Mission

✓ If the appointing state recalls her envoy, diplomatic mission comes to an end.
✓ Under article 43 of the Vienna convention, the appointing state may end the functions
of an envoy through a notification.
✓ Termination of diplomatic mission also takes place on the request of a receiving state.
✓ If a diplomatic envoy is handed over his passport, it will mean that he has become an
undesirable person in that state and should go back to his country.
✓ If a diplomatic agent is declared Persona-Non-Gratia, the diplomatic mission comes
to an end.
✓ Diplomatic mission comes to an end when object is achieved.
✓ When the time period of an appointed diplomat come to an end, diplomatic mission
terminates.

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Topic# 07: Law of Sea

Outline

➢ Maritime Territory
➢ Maritime Belt
➢ Background
➢ Convention of 1930 under the League Of Nation
➢ Conventions on the Platform United Nations Organizations
• UNCLOS – I (1958)
• UNCLOS – II (1960)
• UNCLOS – III (1982)
➢ Innocent Passage
➢ Contiguous Zone
➢ Hot Pursuit
➢ Continental Shelf
• Rights of Coastal States on Continental Shelf
➢ Concept of Equidistant
➢ Archipelagic States
➢ Exclusive Economic Zone
➢ High Sea

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The territory of a state comprises of not only of its land mass but also its national
waters and the air space above the land and water territory.

Maritime Territory

Besides internal waters, a coastal state’s sovereignty extends to territorial waters and
for some purpose over contiguous zone, continental shelf and exclusive economic zone.

Maritime Belt or Territorial Water

Maritime belt or territorial water is that belt of the sea which is adjacent to the coastal
state and over which the coastal state exercises complete sovereignty.

Background of Law of Sea

Sea is enriched with natural resources and fishes etc. it is also very important from
trade perspective. Therefore, after acquiring resources and achieving technological
advancement, states started occupying seas adjacent to their land. This issue became the
basis of conflicts between different states and a need of law was felt to resolve the issue. First
of all, Cannon Shot Rule was formulated in which it was decided that maritime belt will be
decided upon the range of cannon fire. At that time, the range of cannon was 3 nautical
miles. Some other documents like Maritime laws and Lex Mercatoria were published.
However, scientific inventions and discoveries enhanced the range of cannon artillery and
therefore it became imperative to bring some changes in that particular rule. Many countries
were expanding their maritime belts on basis of how powerful they are. Chile, Peru and
Equador claimed their territorial waters up to 200 nautical miles. Grotius argued that, “the
sovereignty of the coastal state over maritime belt should extend only to that area up to
which it can exercise effective control”. First important attempt was made by League of
Nations in 1930 to develop consensus on maritime belt but failed. Later on, three important
conventions were held by United Nations which played pivotal role in obtaining consensus
of countries and formulation of rules regarding maritime belt.

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First UN Convention on Law of Sea, 1958

At the time when countries were occupying and claiming more maritime belt, UN
called a convention commonly known as UN convention on law of sea, 1958.

UNCLOS – I: Important outcome of this convention was:

➢ Convention on Territorial Belt and Contiguous Zone

Discussion was made about territorial belt and rules related to contiguous zone were
formulated in this convection.

➢ Convention on High Sea

In this convention, consensus was developed on high sea.

➢ Convention on Continental Shelf

In this convention rules regarding continental self were formulated.

➢ Convention on Fishing and Observation of Living Resources

However, this convention failed to fix the range of maritime boundary although some
rules about this belt were formulated, like innocent passage.

After that another convention was held, that is; Second UN Convention on Law
of Sea, 1960:

UNCLOS-II: Important outcome of this convention was:

In this convention, America proposed a compromise formula of 6 nautical miles for

maritime belt but consensus was not developed and the convention failed.

Third UN Convention on Law of Sea, 1982

Later on, all issues were decided in the Third UN Convention on Law of Sea, 1982
and complete consensus was reached by all states:

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This convention (UNCLOS – III) brought changes and all issues were resolved by it.
Some important outcome of UNCLOS – III are:

➢ Territorial belt was decided up to 12 nautical miles.

➢ Up to 200 nautical miles from the base zone, there will be exclusive economic zone.
➢ Seabed will be considered beyond national jurisdiction and thus a common heritage.
➢ Archipelagic state concept is also the outcome of 1982 convention

Case Study: A war has been taken place between UK and Iceland on the capturing of cod
fishes. That is why the range of EEZ was fixed up to 200 nautical miles and the maritime belt
was decided up to 12NM by UNCLOS – III. The area will be under complete authority of
coastal state. The maritime belt starts from baseline and baseline starts from 35m depth of the
sea.

Fig: 01Maritime Boundary

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Innocent Passage

Article 14 – 23, section 3 of UN Convention on Law of Sea deals with the innocent
passage of foreign ships. According to article 14, ships of all states whether coastal are not
shall enjoy the right of innocent passage through territorial sea.

Blockage of way is prohibited and if there is danger in the sea, then the Coastal state
should give proper publicity to the danger for navigation. Along with merchant ships,
warships also have innocent passage and submarine should travel above surface of water and
should have hoisted its flag.

Case Study: Corfu Channel Case

It was a case between UK and Albania. Albania damaged 2 war ships (Orient and
Superb) of UK by fixing sea mines. UK went to International Court of Justice and argued
that we are not in a state of war, still they damaged our ships. International Court of Justice
came up with decision in favor of UK.

Contiguous Zone

Article 33 of UNCLOS – III, 1982 says that, it is not the part of your national territory
and is out of the complete jurisdiction of a coastal state. However, the coastal state can
implement some of its laws including immigration, sanitary and fiscal laws in this area.
Moreover, coastal state can punish someone who violates its immigration and customary
laws in its Contiguous Zone. Fishing is allowed in these waters.

Continental Shelf

According to the natural prolongation theory, the continental shelf of coastal state
may extend up to 350 NM. This 350NM continental shelf is for some specific
countries depending upon their geo-graphic location.

If any state exceeds it beyond 350NM, it is entitled to give 1 % of their profit to any
environmental or cultural organization.

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Fig: 02 Continental Shelf

Rights on Continental Shelf

✓ Coastal state has sovereign rights over it for the purpose of exploring it and exploiting
its natural resources.
✓ Without the expressed consent of the coastal state no other state can take the
resources of its continental shelf.
✓ A country can take technical assistance of another country but there should be
expressed consent of the coastal state.
✓ The coastal state may not impede the laying or maintenance of sub-marine cables or
pipe lines on the continental shelf.
✓ The exploitation of its natural resources must not result in any un-justifiable
interference with navigation, fishing or the conservation of the living resources of the
sea.

Archipelagic States

Archipelagic states are those states which have irregular border or coasts. In 1958
convention, no provisions were given about such states. In 1982, in the third convention, they

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talked about straight baseline method. The water will be considered as internal water of the
coastal state.

Fig: 03 Archipelagic States

Exclusive Economic Zone

Third UN Convention on law of Sea, 1982 came-up with following provisions

regarding EEZ.

➢ Article 55 says that EEZ is an area beyond and adjacent to the territorial sea.
➢ Article 56 says, in the EEZ coastal state has the following rights.
o Sovereign rights for the purpose of exploring and exploiting, conservation and
managing natural resources (living or non-living) of the water super jacinth to
the sea belt and subside.
o The coastal state can establish and use artificial islands, installation and
structures.
o The coastal state can conduct marine scientific research.
o Protection and preservation of the marine environment.

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➢ Article 57 of UNCLOS – III says that exclusive economic zone shall not extend
beyond 200NM from the baseline.
➢ Article 58 says that in the EEZ all states whether coastal or landlocked enjoy freedom
of over flight and navigation and lying of sub-marine cables and pipelines.

All coastal states are entitled to provide free movement in water to land locked state.

High Sea

High sea is no man’s property and is declared as common heritage. It is beyond the
state’s jurisdiction. Disputes on mining in high sea will be settled by International Sea Bed
Authority. Disputes in high sea other than sea bed will be settled by Law of Sea Tribunal
(Hamburg, Germany) and International Court of Justice.

The convention of 1982 has been signed by 163 countries.

Equidistant

It is a rule, applied in case of opposite or adjacent coasts of two states, in this case
area between baselines of two states are equally divided. Permission of coastal state is
necessary for conduction of research in continental shelf.

Hot Pursuit

If a foreign ship violates the laws of a coastal state in its maritime belt, the particular
state can use her right of hot pursuit (following of ship). As the ship escapes from contiguous
zone and enters into high sea, the right of hot pursuit ends there. Hot pursuit must be
continuous and the moment you stop, you lose the right of hot pursuit. Similarly when the
ships enter into territorial water of another state, the right of hot pursuit also comes to an end.

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Topic# 09: Recognition of State

Outline

➢ What is State
o Requirements of a State
➢ What is Recognition?
➢ Theories of Recognition
o Constitutive Theory
o Declaratory Theory
➢ Modes of Recognition
o De facto Recognition
o De jure Recognition
➢ External and Internal matters of State
➢ Recognition of Insurgency
➢ Recognition of Belligerency
➢ Recognition of Government and State
o Estrada Doctrine
o Tobar Doctrine
o Stimson Doctrine
➢ Express, Implied and Collective Recognition

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Before going towards defining what actually recognition is, let’s first discuss that
what a state is.

Definition and Requirements of State

State can be generally defined as;

“A group of people that is politically organized having a specific territory is called as a

state”.

According to professor Kelsen, there are 4 conditions for statehood. These are;

o People,
o Territory,
o Government, and
o Sovereignty

What is Recognition?

Recognition is a process through which a political community acquires international

personality by becoming a member of family of nations. According to Professor Oppenheim,
in recognizing a state as a member of international community, the existing states declare
that in their opinion the new state fulfils all the conditions of statehood as required by law.

Fenwick also subscribes to this view that through recognition the members of the
international community formally acknowledge that the new state has acquired international
personality.

According to Kelsen, a community to be recognized as an international person must

fulfill the following conditions.

• The community must be politically organized.

• It should have control over definite territory.
• This definite control should tend towards permanence.
• The community thus constituted must be independent.

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In short we may say that through recognition, the recognizing state acknowledges that
the recognized state possesses all the essential conditions of statehood.

International law does not provide as to how these essential conditions are to be
determined and leaves the international community free to determine by themselves whether
the recognized state contain the essential conditions of statehood. It is because of this reason
that very often recognition is said to be a political diplomatic function.

Theories of Recognition

There are two main theories of recognition;

1) Constitutive Theory

According to this theory, it is the act of recognition that creates the new state as an
international legal person. Hagel, Anzilloti and Oppenheim etc are the chief exponents of this
theory. In the words of Oppenheim, “A state is, and becomes international person through
only and exclusively”. Holland also supports constitutive theory. In this view, recognition
confers maturity upon the state and until and unless a state is recognized, it cannot acquire
rights under international law.

According to Judge Lauterpacht, there is a legal duty on the part of the state to
recognize any community that has in fact acquired the characteristics of statehood.

Criticism

This theory has been vehemently criticized by jurists. The view of Judge Lauterpacht
about the legal duty on the part of existing states does not seem to be correct. In practice,
states do not accept any such obligation. According to this theory, if a state is not recognized
it can have neither duty nor rights under international law. This is very absurd suggestion.
Example of China can be cited in this connection. China was not recognized by USA and
other western countries for many years although China possessed all the attributes of a state.
Now if is said that China have no rights and duties under international law would be an
absurd proposition.

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2) Declaratory Theory

According to this theory, statehood or the authority of new government exists

independent of recognition. Recognition is merely acknowledgment through which an
established fact is accepted.

Chief exponents of this theory are Hall, Wagner, Brierly and Fisher etc. According to
Professor Hall, a state enters into the family of nations as of right when it has acquired the
essential attributes of statehood. Brierly has also remarked, “The granting of recognition to
a new state is not a constitutive but a declaratory act”. A state may exist without being
recognized. If it exists in fact, then whether or not it has formally recognized by other states,
it has a right to be treated by them as a state.

Criticism

This theory has also been subject to criticism. The view that recognition is only a
declaratory of an existing fact is not completely correct.

Conclusion

On the basis of above discussion, it may be concluded that recognition is declaratory

as well as constitutive act. “Probably the truth lies somewhere between these two
theories”.

Professor Oppenheim who has been classed among the exponents of constitutive
theory, has admitted, that recognition is constitutive as well as declaratory. In his words,
“Recognition is declaratory of an existing act but constitutive in nature”.

Modes of Recognition

The modes of recognition may be of two kinds:

o De facto Recognition
o De jure Recognition

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I. De facto Recognition

The practice of states shows that in first stage the states generally give de facto
recognition. Later on, when they are satisfied that the recognized state is capable of fulfilling
its international obligations, they confer de jure recognition upon it. According to Professor
G. Schwazenberger, when a state wants to delay de jure recognition of any state, it may, in
the first stage grant de facto recognition. It is sometimes said, de facto recognitions of state is
a step towards de jure recognition. De facto recognition means that the state recognized
possesses the essential elements of statehood and is fit to be a subject of international law. In
the view of judge Lauterpacht, de facto recognition shows that the recognizing state wants to
establish its relation with recognized state without establishing diplomatic relations. As
remarked by Professor Oppenheim, “De facto recognition is, in sense, provisional and
liable to be withdrawn if the absent requirement of recognition fails to be materialized”.

II. De jure Recognition

De jure recognition is granted when the recognized state possesses all the essential
requirements of statehood and is capable of being a member of international community.
British practice shows that three conditions are required for granting de jure recognition.

✓ A reasonable assurance of stability and permanence.

✓ The government should command the general support of the population; and
✓ It should be able and willing fulfill to its international obligations.

For De jure recognition an intention to establish diplomatic relations are necessary.

Distinction between De facto and De jure Recognitions

The main difference between these two is that the De Facto recognition is provisional
while De jure is final. Granting recognition to a state creates some legal effects. These legal
effects of recognition are;

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a. Diplomatic Relations

Diplomatic relations can be established with the countries to which de jure

recognition has been granted. Countries with de facto recognition do not have diplomatic
relations. Diplomatic relations is a product of de jure recognition.

b. Right of Sue in the Courts

This right is also available in case of de jure recognition. Governments of different

states provide right of sue to the citizens of each other only if there is de jure recognition
between them. No such right is guaranteed in case of de facto recognition.

c. Diplomatic Immunities

Diplomatic immunities are granted to the diplomats only if there is de jure recognition
between the states. No diplomatic immunities are provided in case of de facto recognition.
This is a major difference between de facto and de jure modes of recognition created
between the states.

d. Possession and Succession of Property

Similarly like other things, the possession and succession of property in some other
country can be possible only in case of De jure recognition.

External and Internal matters of a State in case of De facto Recognition

In case of internal matters state will be totally free even in de facto recognition. While
in external matters the state will have no such credibility and will have no any power. For
instance, the case of Arantzazu Mendi can be cited in this connection. It was a Spanish ship,
travelling in high sea. Before reaching to London the Basques took charge of Spain as a
result of civil war. Leader of Basques, Gen. Franco became the ruler. When the afore-
mentioned ship reached the territorial waters of U.K, the republicans claimed possession of
the ship and argued that U.K has granted us de jure recognition so the ship should be handed
over to us. Conversely, Gen. Franco stated that Government is changed here which is our

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internal matter so ship should be handed over to us. Later, the decision came in favor of Gen.
Franco.

Recognition of Insurgency

“Insurgency is used to denote the condition of political revolt in a country where

the rebels have not attained the character of belligerents”. It is an armed struggle by a
specific group against an established order.

Features of Insurgency

▪ It is a kind of guerilla warfare.

▪ Insurgents have no specific uniform.
▪ They have no identified leader.
▪ No chain of command is followed in insurgency.

Insurgency is the internal matter of a state so therefore it cannot be recognized.

Recognition of Belligerency

When insurgency is well organized, hostilities are conducted according to the laws of
war and have a definite territory under their control, it is called as belligerency. It may be
recognized by other states whether or not the parent state has already recognized that status
of belligerents. Recognition of belligerency is the question of policy and not law. Some states
recognize belligerency while others not.

Pre-requisites of Belligerency

❖ They must have some occupied territory.

❖ The armed conflict is to be of general character.
❖ They should be identified as combatants.
❖ They should have leadership.
❖ And they must be following a chain of commands.

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Insurgency later on converts to belligerency that is an international armed conflict.

Example is NTC (National Transition Council) in Libya. In this case a state can get
assistance from another state.

Here a question arises that why the Sri Lankan rebels and ISIS are not given the status
of belligerents. The answer is because they are not following the rules of international armed
conflict.

Recognition of Government and Recognition of State

Recognition of state means that it has been included as a member of international

community. There is a difference between recognition of state and recognition of
government. By recognition the international community determines that the recognized
state possesses the essential qualities of a state and is able and willing to fulfill its
international obligations. But so far as the recognition of government is concerned, it
depends on facts and circumstances. Ordinarily it is seen that the recognition of government
is given simultaneously with the recognition of the state.

Case Study: For instance most of the states recognized Bangladesh as well as its
government. However states do not accept any such obligation for recognizing states or
government. Most of the countries accepted China as a state but they did not recognize the
communist government of China for many years. Usually states do not recognize the
government that has come to power through extra constitutional change or coup d’état.

There are three main doctrine regarding recognition of new government.

i. Estrada Doctrine

This doctrine was propounded by Mr. Estrada, Foreign Minister of Mexico. This
doctrine is about the establishment of diplomatic relations with other states. According to
him coup d’état is the internal matter of a state and has nothing with international
community. If a revolutionary government commands the support of the people, then
diplomatic relations should be established with it.

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ii. Tobar Doctrine

This theory was propounded by Tobar, a jurist of Ecuador. He argued that

international community should not recognize the change of government which has come
through extra-constitutional means.

iii. Stimson Doctrine

This doctrine was propounded by Stimson, Secretary of State of United States of

America. This theory is often called doctrine of non-recognition. According to this theory, if
a state grants recognition to another state in violation of an international treaty, such
recognition would not be valid. An example is the Pact of Paris, 1928. However states refuse
to accept any such obligation and treat recognition as a political diplomatic function. This
theory also says that extra-constitutional change should not be recognized and revolution
should be recognized by state.

Practices regarding Recognition of Government

There are two main practices of recognition of government;

The Practice of USA

In case of un-constitutional change in a country, USA usually recalls its diplomats

from that particular country, granting de facto recognition to that government.

The Practice of United Kingdom

After the year of 1980, United Kingdom is also following the same practice as like
United States of America.

Express, Implied and Collective Methods of Recognition

Recognition is not only an act, but a process. It is usually granted by the following
three kinds of methods.

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1. Express Recognition

In this type of recognition a state formally recognizes another state. Recognition is

usually done by a congratulation message, official visit of that state or by the formal
recognition of that state.

2. Implied Recognition

Implied recognition is granted when the recognized state and recognizing state enter
into a bilateral treaty and formally sign it. Participation of the concerned state in a multi-
lateral treaty or in international conference also indicates implied recognition. The start of
negotiation between the recognizing and recognized state is also an example of implied
recognition.

3. Collective Recognition

By collective recognition we mean that recognition is granted by number of states

collectively. For example, when a state is admitted to the United Nations, it will mean
collective recognition by those states which voted in favor of the admission of such state.

Is withdrawn of Recognition Possible

Recognition de jure is final and once given cannot be withdrawn. But so far as de
facto recognition is concerned it is provisional and can be withdrawn if the recognized state
fails to fulfill the conditions, imposed along de facto recognition.

Is there a duty to Recognize?

In view of Judge Lauterpacht it is duty of the existing states. In practice, states have
not consented to any such obligation. Existing states are only empowered; they are not
obligated to perform the acts of recognition. Refusal to recognize the existence of a new state
is no violation of general international law.

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Topic# 10: Law of Treaties

Outline

✓ Introduction
✓ Meaning and Definition of International Treaties
✓ Basis of Binding Force of Treaties
✓ Parties Competent to make a Treaty
✓ Requirement of Free Consent
✓ Essentials of Treaty
✓ Formation of Treaties
✓ Classification of Treaties
✓ Multilateral treaty Procedure
✓ Ratification of Treaty
✓ Reasons for Ratification of Treaty
✓ Interpretation of Treaty
✓ Termination of Treaties

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Introduction

In the modern period international treaties have been the first and foremost source of
international law. Whenever an international court has to decide an international dispute, its
first endeavor is to find out whether there is an international treaty between the states
governing the matter under dispute. In case of yes, the decision of the court is based on the
provisions of the treaty. International treaties occupy the same significant position in the field
of international law as the legislation occupies in the municipal law.

Meaning and Definition of International Treaties

International treaty is an agreement between two or more states whereby they

establish or seek to establish their relationship governed by international law. According to
Prof. Schwarzen Berger;

“Treaties are agreements between subjects of international law creating legal rights and
treaties”.

According to Starke, in nearly all the cases the object of the treaty is to impose
binding obligations on the states who are parties to it.

According to article 2 of the Vienna convention on law of treaties 1969,

“Treaty is an agreement concluded between states in written form and governed by

international law”.

Basis of the Binding Force of International Treaties

There is a great controversy amongst the jurists in regard to the binding force of
international law.

In the view of Italian jurist, Anzilloti, the binding force of international treaty is on
account of the fundamental principle known as “Pacta Sunt Servanda”. According to this
principle, states are bound to fulfill in good faith the obligations assumed by them, under
treaties. According to Prof. Oppenheim, the matter is still much disputed. Many writers find

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the binding force of treaties in law of nature, others in religious and moral principles etc.
some assert that it is a will of the contracting parties which gives binding force to the treaties.
No economic relations between states and foreign corporations can exist without the
principle of Pacta Sunt Servanda.

Thus, perhaps the most fundamental principle of international law and surely the
basic principle of treaties are of Pacta Sunt Servanda. According to article # 26 of Vienna
convention 1969, “every treaty in force is binding upon the parties to it and must be
performed by them in good faith”. Moreover as pointed out by a soviet author the maxim
Pacta Sunt Servanda cannot be applied on every treaty. Pacta Sunt Servanda embraces only
lawfully concluded treaties, and only in relation to them can it play a progressive role.

Parties Competent to make a Treaty

Generally, only sovereign states are competent to make a treaty. In accordance with
the principle of sovereignty, sovereign states have un-limited powers to make treaties. Those
states which are not completely sovereign are not competent to make it. In view of the
developing and changing character of international law, international institutions may also
make treaties. Thus, “Generally only states which fulfill the requirements of states hood, or
international organizations can be parties to it”.

Requirement of Free Consent

It is a fundamental principle of the law of contracts that there should be free consent
of the parties. In international treaties also, ordinarily free consent is required. But this rule is
not strictly applied in the field of international law. In past a number of international treaties
were made through coercion or fear, yet they were considered binding. For example,
conquered state imposed its conditions on the vanquished state and compelled it to sign it.
Treaties entered into force after first and second world wars are glaring examples of such
type of treaties. According to Grotius such treaties shall be valid. In view of Hall such
treaties shall be valid only when its object is valid.

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Vienna Convention on Law of Treaties provided definite rules. Article # 51 says;

‘The expression of a state’s consent to be bound by a treaty which has been procured by
coercion of its representatives through acts or threats directed against him shall be without
any legal effect”.

Article # 52: further provides;

“A treaty is void if its conclusion has been procured by the threat or use of force in
violation of the principles of international law embodied in the charter of United Nations”.

Essentials of Treaty

There are following four essentials of a treaty:

1. The treaty must be in written form.

2. Treaty should be concluded on a lawful subject.
3. Free consent of the parties or representatives of states is also necessary.
4. The conclusion of treaty will create legal obligations on the parties of treaty.

Formation of Treaties

Following are the main steps in formation of treaties:

1. Accrediting of Persons on behalf of Contracting Parties

It is the first step in formation of treaties. In this step states authorize their
representatives to represent them in the negotiation, adoption on and later on in the signature
etc of a treaty. Unless and until these representatives are authorized they cannot participate in
the conference.

2. Negotiation and Adoption

In the second step the accredited persons of contracting parties enter into negotiations
in order to reach at the consensus and then adopt the treaty. Once all the matters are settled
down and consensus is reached, the treaty is adopted.

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3. Signature

After adoption, the accredited representatives of the state parties sign the treaty on
behalf of their respective states. It may, however, be noted that the treaty does not become
binding until it is ratified by the respective states.

4. Ratification

Ratification is very important step in the formation of a treaty. Unless and until a
treaty is ratified it does not bind the state concerned. By ratification we mean that the head of
the state or the state government confirms or approves the signature made by their authorized
representatives in accordance with the provisions of the constitution of any particular state.
The state parties become bound by the treaty only after ratification.

5. Accession and Adhesion

In practice when a state has not signed a treaty it can only accede or adhere to it. The
practice of the states shows that those states which have not yet signed the treaties may also
accept it later on, this is called accession. Moreover, even after the prescribed numbers of
state parties have signed a treaty; other states may also accept or adhere to that treaty. This is
called adhesion.

6. Entry into Force

Entry into force depends upon the provisions of the treaties. Some treaties enter into
force immediately after signature. But the treaty in which ratification is necessary enters into
force only after it has been ratified by the prescribed number of state parties. It is
fundamental principle of international law that only parties to a treaty are bound by the
treaty. This is often expressed by the maxim “Pacta treaties nec nocent nec prosunt”.

7. Registration and Publication

After a treaty enters into force, its registration and publication are also ordinarily
considered essential. According to article # 102 of the Charter of United Nations the

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registration and publication of every treaty is essential. It is made clear in this article that if
an international treaty or agreement is not registered, it cannot be invoked before any organ
of the United Nations. The object of this article was to prevent the practice of secrete
agreements between states.

Classification of Treaties

McNair has classified the treaties under the following categories:

1. Treaties having the character of conveyances

2. Treaty contracts
3. Law making treaties
4. Other treaties, such as, the treaty of universal classified treaties into four categories.
But Prof. Oppenheim has classified treaties into two categories;
➢ Law making treaties
➢ Treaties for other purposes

Multilateral Treaty Procedure

On 8th December, 1977, the General Assembly requested (through resolution 32/48)
the Secretary General to prepare a report on the techniques and procedures used in the
elaboration of multilateral treaties. The report was adopted on 31st July, 1979, and initiation
has been made for improvement in techniques which would be used in the future.

Ratification of Treaty

Article# 2 of the Vienna Convention on Law of Treaties, 1969, says;

“Ratification is the international act, whereby a state establishes on the international plain
its consent to be bound by a treaty”.

Some jurists are of the view that without ratification a treaty has no value in law. In
the modern period, it depends upon the intentions of the parties as to whether or not the
treaty will have the force of law. According to article #14 of the Vienna Convention on Law

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of Treaties, 1969, a state becomes bound by treaty when it ratifies it positively or it becomes
bound by treaty under the following circumstances.

➢ When there is a provision in the treaty to this effect.

➢ When the treaty is signed under the condition that ratification is necessary.
➢ When the parties express the view that ratification is necessary. In such condition
treaty becomes enforceable only intention of ratification is evident from the
circumstances and talks during negotiations.

Reasons for Ratification of Treaty

1. Through the process of ratification, the states get an opportunity to consider in detail
the treaty which has been signed by their representatives.
2. On the basis of principle of sovereignty each state is entitled to keep itself away from
the treaty or repudiate it if it so desires.
3. Sometimes the provisions of the treaty require some changes in the state law, so the
time between signature and ratification is utilized for bringing change in state law.
4. Lastly, on the basis of democratic principles, the states get opportunity to respect
public opinion.

Interpretation of Treaties

Following are the general principle of interpretation of treaties:

a) Grammatical Interpretation

In the first place, the words and phrases of a treaty are considered according to their
plain and natural meaning in order to interpret the treaty. This interpretation of words and
phrases are called as grammatical interpretation.

b) Object and Content of Treaty

In case the words and phrases are ambiguous, they are considered keeping in view the
general object of the treaty and its context. For instance, the object of Indus Water Treaty is

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the distribution of rivers between India and Pakistan. Similarly, object and context of the
establishment of NATO was the communist threat to Western European States.

c) Reasonable and Consistent

International treaties are also interpreted on the basis of this principle. It is a general
principle of law of treaties that treaty should be interpreted so as to give reasonable and
consistent meaning of the phrases and words. Article 31, Para 1 of the Vienna Convention on
Law of Treaties, 1969 stated that treaty should be interpreted with reference to its object and
purpose.

d) Principle of Effectiveness

It is also one of the bases of interpretation of treaties. According to this principle the
treaties are interpreted in such a way as may prove to be most effective and useful. Treaties
are interpreted on the basis of this principle so as to make sure that the treaty is not unreal or
illusionary and can be really effective.

e) Recourse to Extrinsic Material

This is also an important principle of interpretation of treaties. According to article #

31 of the Vienna Convention on Law of Treaties, 1969, a treaty “shall be interpreted in good
faith in accordance with the ordinary meaning to be given in the term of treaty in their
context and in the light of its object and purpose”.

Termination of Treaties

There is also a defined mechanism for the termination of treaties. Treaties may be
terminated by the following two ways. They may be either terminated by mutual consent or
through operation of law.

➢ By Mutual Consent

Treaties may terminated by mutual consent. In this case, if both the parties of a treaty
want to discard any particular treaty, then they can certainly terminate it. According to

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Article 54 of the Vienna convention, it will be considered as terminated, if all the parties to it
conclude a subsequent treaty relating to the same subject matter.

➢ By Operation of Law

Similarly, termination of treaties by operation of law may be made in the following cases:

a) By Outbreak of War

According to the old view, the outbreak of war between the parties results in the
termination of treaties. But in the modern period all treaties do not end at the outbreak of
war. For example those treaties between the belligerent states for which general, political and
good relations are essential, cease at war.

b) By Extinction of Either Party

A treaty is terminated if either party of the treaty extinct. A treaty is always concluded
between two or more states. If one of the parties is extinguished by annexation or merger, it
may cease to operate. For example the treaty between USA and Tripoli came to an end when
the latter was annexed by Italy in 1912.

c) Impossibility of Performance

This provision is contained in article # 61 of the Vienna convention. If performance

of a treaty becomes impossible for a state, the treaty also terminates automatically. Article 61
of the Vienna convention stated that “the impossibility of performance is a valid ground for
the termination of the treaty". A good example can be the Pak-Turkey F-16 deal.

d) Jus Cogens

Jus Cogens is an old legal maxim. It means that if a treaty is in violation of

international law, it must be considered null and void. A treaty cannot be formulated on an
unlawful subject. According to Article 53 of the Vienna Convention the treaty is void, if at
the time of conclusion it conflicts with peremptory norm of international law.

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e) Rebus sic Stantibus

It is also another ground for termination of law. It means that if the fundamental or
material circumstances under which a treaty is concluded change, then this change becomes a
basis for the termination of treaty. There may be situations in which the continued
application of treaty may be an intolerable burden on them. For example Warsaw Pact
terminated with the end of communism. Fundamental circumstances under which this treaty
was concluded changed, therefore, the treaty came to an end.

f) Expiry date of a Treaty

Some treaties are concluded for specific time period. They get terminated once the
expiry date is reached. In simple words if the treaty has been concluded for a fixed period of
time, the expiration of the fixed term will automatically terminate the treaty.

g) Fulfillment of Object

Similarly, a treaty automatically terminates if the object (on the basis of which it has
been concluded) is achieved. The fulfillment of object of a treaty results in termination of a
treaty.

Pacta Treaties Nec Nocent Nec Prosunt

It is a fundamental principle of the law of contract the only parities to a

contract are bound by it. This principle is incorporated in article 34 to 38 of the
Vienna Convention on Law of Treaties, 1969.

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Topic# 11: International Humanitarian Law

Outline

✓ Brief introduction
✓ Basis of I.H.L
✓ Evolution of I.H.L
✓ Codification of I.H.L
✓ Convention on Cultural Property, 1956
✓ I.H.L and Nuclear Weapons
✓ Convention on Chemical Weapons
✓ Convention on Conventional Weapons
✓ Convention on Biological Weapons
✓ Protected Objects
✓ Prohibited Actions
✓ Principles of I.H.L
✓ Breaches of I.H.L
✓ Effects of Outbreak of War

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Before going towards “humanitarian law” let’s first discuss that what is war and why
it became necessary to develop code of conduct for regulating war.

Introduction

According to Professor Hall, “when differences between states reach a point at

which both parties resort to force, or one of them does acts of violence which the other
look upon as a breach of peace; the relation of war is set up”. Starke has also pointed out
that “war in its most generally understood sense was a contest between two or more states
primarily through their armed forces, the ultimate purpose of each contestant group is
being to vanquish the other and impose its conditions of peace on it”.

According to Prof. Oppenheim, the chief objective of war is to over-whelm the enemy
and to impose conditions upon it.

Basis of IHL

According to old definition of war, war is mainly a contest between the armed forces
of the belligerent states. But in the modern period it is often seen that war also affects
citizens of the state concerned. The most glaring example of this is the dropping of atom
bombs at Nagasaki and Hiroshima, the two cities of Japan, in 1945. It therefore became
necessary to develop a code of conduct for regulating war. International Humanitarian law is
the name of the body of those rules which regulate war.

Difference between Human Rights, Fundamental Rights and Humanitarian

Rights

Human Rights

The rights of an individual on a state are called human rights. These rights are not
justice able (i.e. cannot be sued in the courts in case of violation) and are usually given in
time of peace E.g. Right to Education and Right to Employment etc.

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Fundamental Rights

The rights that are generally guaranteed by a state to its citizens are called as
fundamental rights. These rights are justice able E.g. Right to Life (Security) etc. These
rights are also connected with time of peace.

Humanitarian Rights

Humanitarian rights are those rights which are provided to non-combatants during
war between the belligerent states.

History and Evolution of IHL

The idea of humanitarian law is very ancient. It can be traced back to the era of
Alexander in 333B.C. First of all, he (Alexander) gave the concept that in war, religious sites
and crops of the enemy country would not be damaged. He was the first emperor in the
history to grant protection to these two objects during war.

Roman Era

Romans practiced this tradition of Alexander, kept it continue and took another step
ahead by giving protection to the children and women of enemy country. In this way,
Romans greatly contributed in development of IHL.

Conquest of Makah

At conquest of Makah, Prophet (PBUH) put a great example of humanity. He laid the
foundation of humanitarian law. Basically, it was the turning point and initiation of
humanitarian law. After Muhammad (PBUH), Muslim conquerors further contributed to the
development of IHL on a large scale.

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Hugo Grotius

Hugo Grotius is known as the father of modern international law. He gave the concept
of “Just War” in his book “On the Law of War and Peace”. His book exhibits a greater
position in the development of International Humanitarian Law”.

Abraham Lincoln

Abraham Lincoln very tactfully regulated the civil war in America and presented a
“Liaber code” to deal with it. This document is considered as the founding stone in the
codification of humanitarian law. The concept of humanitarian law was actually present in
Islam but not in codified form. In this way Abraham Lincoln played his role in developing
humanitarian law.

International Community of Red Crescent (1863)

The most important thing in development of IHL is the establishment of I.C.R.C

(International Community of Red Crescent). It was the idea of Henry Durant, a close friend
of Napoleon III. Henry Durant was from Austria and was a landlord. Once he went to Paris
to meet with Napoleon III but when he reached there, he came to know that Napoleon is busy
in fighting a war (“Battle of Sulferino”). He went to the battlefield where he met with
Napoleon III and observed the wounded soldiers. He observed that some of the soldiers have
got minor injuries but due to continuous flow of blood from their bodies, they are dying.
Nobody is there to look after them or provide them first aid. At that time he decided that he
will establish an organization which will work during war times and will provide basic aid to
the injured soldiers of both armies. Therefore, ICRC was established based on his idea. Since
then, ICRC has convened four Geneva conventions to formulate rules regarding warfare.

Codification of IHL

The codification of IHL took place in a steady manner. Many conventions and
declarations were signed in this regard at different interval of time. These all steps proved to
be very significant in development of law.

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Declaration of Paris (1856)

The declaration of Paris occupies a place of significance in the developing and

codification of international law. This declaration was signed by Britain, France, Russia,
Austria, Turkey, Prussia, and Sardinia after the end of Crimean war in 1856. This declaration
laid down certain principles like non-capture of neutral goods and principle of blockade etc.

First Geneva Convention, 1864

In this convention rules related to sick and wounded were formulated. It was signed in
1864, just one year after the establishment of ICRC. It was signed by Germany, French
Empire, Belgium, Denmark, Netherland and Spain etc. It further deals with protection of
civilians providing aid to injure soldiers and recognition of Red Cross symbol as well.

First Hague Convention (1899)

The first Hague conference was convened by Emperor Nicholas II of Russia in 1899.
It resulted in adoption of the following two conventions in the form of a code.

I. Convention on the Pacific Settlement of International Disputes; and

II. Convention on the Laws and Customs of War on Land.

Second Geneva Convention (1906)

This convention was adopted in 1906 after Russo-Japanese war. Rules related to sick,
wounded and shipwrecked were formulated in this convention. These rules guaranteed
protection to religious and medical personnel serving on combat ship. According to this
convention, hospital ships cannot be used for military purposes and also Medical staff of
warship could not be arrested.

Second Hague Convention (1907)

Being encouraged with the results of the first Hague conference, the second Hague
conference was convened in 1907. This conference produced as many a thirteen conventions

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relating to warfare and neutrality in war on land and sea. This conference was attended by 44
states.

Third Geneva Convention (1929)

It was adopted in 1929. It talks about prisoner of wars. It says that they are not your
personal prisoners but prisoners of a state and they should be treated humanely.

Fourth Geneva Convention (1949)

It is the last and latest Geneva Convention. It talks about civilians in times of war and
how they should be treated. These conventions have played pivotal role in current scenario.

o Additional Protocol – I: 1949

It added rules related to protection of victims of international armed conflict.

o Additional Protocol – II: 1977

It provides rules regarding non-international armed conflict.

Convention on Cultural Property

This convention is the first international instrument to provide for the protection of
cultural property in case of armed conflict. It was signed at Hague, Netherlands, on May 14,
1954 and entered into force on 1956. The convention defines a protective sign to facilitate
the identification of protected cultural property during an armed conflict. A triple use of that
sign is also possible to mark exceptionally important cultural property under special
protection. This convention was the first international treaty aimed at protecting cultural
heritage in the context of war. It has been ratified by 126 states.

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I.H.L and Nuclear Weapons

A nuclear weapon is an explosive device that derives its destruction force from
nuclear reactions. The large scale of causalities and destruction and its long term effects on
health and the environment raise serious questions about the compatibility of this weapon
with international humanitarian law. In July 1996 the international court of justice concluded
that international humanitarian law did apply to the use of nuclear weapons and that their use
would generally be contrary to IHL’S rules and principles.

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I.H.L and Chemical Weapons

The use of chemical weapons is prohibited in international armed conflicts in a series

of treaties, including Hague Declaration, concerning Asphyxiating gases, Geneva Gas
Protocol, Chemical weapons convention and the Statute of International Criminal Court. At
present only 13 states are not party to either Geneva Gas Protocol or the Chemicals Weapons
Convention. Of these, at least three have made statements to this effect that the use of
chemical weapons is unlawful.

Conventional Weapons

The Convention on Prohibition of Certain Conventional Weapons, which are deemed

to be excessively injurious have banned some conventional weapons in warfare. For
example, expanding bullets, cluster bombs and indiscriminate use of land mines is strictly
prohibited. The purpose of this convention is to ban the use of specific type of weapons that
are considered to cause un-necessary or un-justifiable suffering to combatants. It is also
known as inhumane weapons convention. Ottawa Convention, 1997, is one of the landmark
agreements in this regard.

Biological Weapons

The Biological Weapons Convention came into force in 1975. It effectively prohibits
the development, production, acquisition, transfer, retention, stockpiling and use of
biological and toxin weapons and is the key element in the international community’s efforts
to address the proliferation of weapons of mass destruction. States parties to it undertake
“never in any circumstances to develop produce, stockpile or otherwise acquire or retain
microbial or other biological agents or toxins etc”. It is also called as Biological and Toxin
Weapons Convention (BTWC).

Protected Objects

International humanitarian law is basically a framework to conduct war. In IHL, the

following objects are protected i.e. they cannot be targeted.

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1. Innocent Civilians

Article #51 of additional protocol – I gives protection to civilians. Carpet bombing is

not allowed on them. Furthermore, innocent civilians cannot be used as human shield. In
addition, rule of proportionality be strictly implemented means the weapons should be used
in proportion to the enemy.

2. Medical and Religious Persons

Under international law, harming the individuals from medical and religious core is
also not allowed during war. The state concerned would be held responsible if the medical
and religious staff is targeted and would be liable for compensation once the war is over.

3. Out of Combat

International law also forbade attack on or killing of injured soldiers. The reason is,
once injured, they become out of combat and targeting those who are out of combat is
prohibited under International Humanitarian Law.

4. Cultural Property

The destruction of cultural property of a country during armed conflict is banned in

international law. For example Shahi Qala and Badshahi Masjid are the places which if
declared cultural property cannot be targeted in war.

5. Dangerous Zones

Dangerous zones of the enemy are also outside the circle of war and cannot be
targeted during war. Dangerous zones include sites like dames, Barrages and nuclear
sites/plants.

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6. White Flag

White is a color of peace. People having white flag could not be targeted because it
means they are coming to negotiate and make peace. However, it is the responsibility of
those having white flag not to deceit the other belligerent party.

7. Relief Operations

The civilians helping injured are also protected. They could not be attacked.
Similarly, international law also provides protection to the civilians involved in relief
operations.

Prohibited Actions

The following actions are prohibited in international law.

➢ Terrorizing the People: It is a prohibited act in IHL. For example, as the Taliban
used to terrorize the people.
➢ Starvation: Cutting the supply line of food is prohibited in law.
➢ Looting and Plundering: It too is not allowed under international law.
➢ Rapes: According to IHL, rape is an unlawful act in a war.
➢ Indiscriminate killings: Indiscriminate killings of combatant, non-combatant,
women, children etc are prohibited.

Principles of IHL

International humanitarian law is based on the following five principles. Belligerent

states can fight a war on the basis of following given principles.

1. Distinction
2. Proportionality
3. Military Necessity
4. Limitations
5. Humanity

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Characteristics of Combatants
➢ Member of a regular army
➢ Wearing proper uniform
➢ Having emblem
➢ Under central authority
➢ Involved in national movement
➢ Also called lawful combatants

Characteristics of Non-combatants

➢ No regular army
➢ Not actively participating in war
➢ Having no arms
➢ Not engaged in hostilities
➢ Not assisting army
➢ Also called un-lawful combatants

Characteristics of illegal Combatants

➢ Those persons who are actively taking part in hostilities

➢ Having arms
➢ No specific uniform
➢ They do not expose themselves

Breaches of IHL

Article #3 of the Hague convention provides that a belligerent party who breaches
IHL is liable to pay compensation and is responsible for all acts committed by person
forming parts of its armed forces. 190 states are party to Geneva Convention.

Red Cross Personnel and Red Cross Insignia

Geneva Convention for the amelioration of the condition of wounded and sick
provides that the belligerents have to respect and protect the mobile medical units and

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personnel of medical service. This protection ceases if they are involved in carrying
espionage, concealing arms and ammunition or sheltering combatants. Under article 24, the
personnel engaged in the treatment of the sick and wounded must be respected and protected
under all circumstances. According to article 28 of the Geneva Convention, 1949, the
medical personnel, the chaplains and staff of National Red Cross societies may be retained
by the belligerent into whose hands they have fallen. The Geneva Convention recognizes the
emblems of Red Cross, the Red Crescent, or the Red lion or Red sun; on a white ground as a
distinctive emblem.

The abuse of the distinctive sign for the purpose of offensive military action is a
violation of both the convention in particular and the law of war in general.

Effects of the Outbreak of War

The effects of outbreak of war can be broadly categorized as;

➢ General Effects

Besides affecting the neutral states, war mainly affects the belligerent states.
According to Professor Oppenheim, it is wrong to say that due to the outbreak of war all the
relations of the belligerent states and that of their citizens come to an end. International law
prescribes certain limitations and prohibitions and the relations of the belligerent states
during war are governed by the laws of war.

➢ Diplomatic and Consular Relations

At the outbreak of war, diplomatic and consular relations between the belligerent
states are broken immediately. Consequently the belligerent states recall their diplomatic
agents from each other states. Often at the outbreak of war, the receiving belligerent states
hand over the passports to diplomatic agents of enemy country which means that they should
immediately return to their states. Article 44 of the Vienna on diplomatic relations, 1961,
provides that it is the duty of the receiving state to provide necessary facilities to such agents
so that they may return safely to their home state.

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➢ Treaties

According to the old view, all treaties are terminated between the belligerent states
after the outbreak of war. In the present times, many significant changes have come in this
respect. The present practice of states shows that all the treaties between the belligerent states
do not come to an end. Some treaties are completely terminated, some remain in force, while,
some others are simply suspended during war times. For example,

o Those treaties, for which common political action or good relations are essential,
terminate at the outbreak of war. E.g. treaty of alliance.
o Treaties regarding the border demarcation remain un-affected by war.
o Treaties regulating the conduct of war remain binding during war upon the parties
to such treaties. The Hague conventions of 1899 and 1907 were such type of
conventions.
o Those multi-lateral law making treaties which are related to health, medicine,
protection of industrial property etc. are not completely terminated at the outbreak
of war. They are simply suspended and revived after the war.
o Sometimes there are express provisions in the treaties which make it clear whether
the treaties will remain in force at the outbreak of war.
o Some types of treaties, such as, treaties relating to extradition are simply
suspended at the outbreak of war.
➢ Trading and Intercourse in Commerce

All trading and intercourse between the belligerent states are prohibited during the
war. It is well recognized rule of international law that the treaties relating to trading and
intercourse between the belligerent states stand terminated at the outbreak of war.

➢ Contracts

The effect on the contracts at the outbreak of war between the belligerent states is a
matter of municipal law rather than that of international law. Consequently, belligerent states
are free to make rules and to enforce them in accordance with the contracts. The practice of

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states, however, shows that the executory contracts become completely void whereas
executed contracts remain un-affected at outbreak of war.

➢ Enemy Property

Enemy property may be of two types.

✓ Public Enemy Property

At the outbreak of war all movable public enemy property situated in the enemy
country may be seized. Immovable public enemy property may be temporarily taken but
cannot be permanently seized.

✓ Private Enemy Property

Private enemy property can be temporarily taken only when it is essential for military
purposes of the belligerent states. Its plunder or seizure is contrary to international law.

Ruses of War or Stratagem?

By ruses of war we mean that for the attainment of its military objectives
a belligerent state can misguide or mislead the enemy. According to modern
concept of war, war is not only the test of physical strength but also of
intelligence. Ruses of war are permitted under article 24 of the Hague
convention.

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Topic#12: Settlement of International Disputes

Outline
➢ Settlement of Disputes
➢ Pacific means of Settlement of Disputes
o Arbitration
o Judicial Settlement
o Negotiation
o Good Offices
o Mediation
o Conciliation
o Enquiry
o Settlement of Disputes under the Auspices of U.N.O
➢ Compulsive or Coercive means of Settlement of Disputes
o Retorsion
o Reprisal
o Embargo
o Pacific blockade
o Intervention

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The methods of the settlement of international disputes may be divided into two main
categories:
a) Pacific means of Settlement of Disputes
b) Compulsive or forcible means of Settlement of Disputes.

Pacific means of Settlement of International Disputes

Following are the pacific means of settlement of international disputes:

i. Arbitration

By arbitration we mean the method through which a dispute is referred to certain

persons called arbitrators. Their decision is known as “award”. These arbitrators are selected
by the parties to dispute. Although they are selected on the basis of the consent of the parties
to a dispute, their decision or award is binding upon the parties. Article 15 of the Hague
convention of 1899 provides:

“International arbitrational court has for its object the settlement of differences between
states by judges of their own choice and on the basis of a respect for law”.

The history of settlement of international disputes through arbitration may be traced

back to very ancient times. But in modern times its history dates back from “Jay Treaty of
1794” between England and America. The next important event in development of
settlement of international disputes through arbitration was “Alabama claims Arbitration,
1872”. In this case, America has claimed compensation on the ground that it had violated the
laws of neutrality. As remarked by Judge Hudson;

“The success of Alabama claims arbitration stimulated a remarkable activity in the field of
international law decisions”.

The next important event was the adoption of Hague convention of 1899, wherein
international law relating to arbitration was codified. Yet another important result of the
Hague conference of 1899 was the establishment of Permanent Court of Arbitration. This
work was completed by Hague conference of 1907.

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The name “Permanent Court of Arbitration” is very misleading. In fact, it is

neither a court nor permanent. As pointed out by Fawcett, “the court is permanent only in
the sense that it has a registry, the international bureau, which has its seat at The
Hague, which keeps the archives and acts as an intermediary between states desiring to
use the court”. Instead of being a court, it comprises of a panel of names from which
arbitrators for temporary arbitral tribunals are chosen. Others examples are;

✓ Mascat Dhows case, 1905

✓ North Atlantic Coast Fisheries Case, 1910
✓ Kutch Arbitration of 1968

Advantages of Arbitration

▪ More appropriate for technical disputes.

▪ Less expensive.
▪ Can be conducted without publicity.
▪ General principle governing the practice and powers of arbitral tribunals are fairly
well recognized.
▪ Arbitral procedure is flexible enough.
▪ Judges of choice (i.e. Judges are selected by the parties to a dispute).

ii. Judicial Settlement

So far as the judicial settlement of international disputes is concerned, at present there

is only one such court called as the International Court of Justice which is the successor of
Permanent Court of International Justice, established under the League of Nations. At present
ICJ occupies important place so far as the settlement of international disputes through
judicial process is concerned.

Distinction between Arbitration and Judicial Settlement

1. ICJ is a permanent court governed by its statute. On the other hand, the permanent
court of arbitration is neither a court, nor permanent.

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2. ICJ has a permanent registry. Arbitration courts have no permanent courts.

3. Proceedings of ICJ are public and its judgments are published. The judgments of
arbitration courts are more properly called awards and may or may not be
published.
4. ICJ is open to all states but its jurisdiction depends upon the consent of states. In
case of arbitration, the consent is necessary even for establishment of court.
5. Disputes submitted to ICJ are decided in accordance with international law.
Arbitration courts settle disputes on the basis of respect for law. Strict application
is neither required nor consistent and focus is laid on the resolution dispute.
6. The judges of ICJ are elected in such a way as to represent all civilizations. No
equal representation in arbitration courts.
7. ICJ has contributed to the development of international law. Awards of
arbitrations are not often regarded as legal decisions.
8. Judicial settlement is given a prominence under the UN charter. Arbitration is,
although, recognized by UN charter as one of the pacific methods of settlement of
disputes but it has not been that prominent role.
9. The statute of ICJ is an integral part of charter. Arbitration simply finds mention
in the charter.

iii. Negotiations

Negotiations are also the means for the settlement of international disputes. It is much
less a formal methods than judicial settlement. Sometimes disputes are settled through
negotiations only. But if negotiations fail to resolve the dispute, then other methods, such as,
good offices, mediation, etc may be used along with negotiations.

iv. Good Offices

When two states are not able to resolve their disputes, a third state may offer its good
offices for the same. These offices may also be offered by international organization or some
individuals. The third state, individual or international organization creates such an

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environment as may be conducive for the settlement of disputes. Some general suggestions
may be put forward but the third party does not take active part in the negotiations. For
example, UNSC offered its good offices in the disputes between Indonesia and Netherlands
in 1947. The recent example of offering good offices is that of France to America and North
Vietnam to settle their mutual dispute so as to end Vietnam War.

v. Mediation

Mediation is yet another method through which efforts are made to settle international
disputes. In case of mediation, the third state or individual not only offers its good offices but
also actively participates in the talks to resolve the dispute. Example: Tashkent agreement
between India and Pakistan was mediated by the then USSR.

vi. Conciliation

Conciliation is the method through which the other states or the impartial person try
to resolve the dispute through different means. Often the matter is referred to a commission
or committee who submits its report and recommends certain measures for the settlement of
disputes. In the words of Judge Hudson; “conciliation is a process of formal proposals of
settlement after an investigation of the facts and an effort to re-conciliate to accept or
reject proposals are formulated.

The Hague conventions of 1899 and 1907, made the provisions for a conciliation
commission. In the present time also conciliation is adopted as a method of settlement of an
international dispute. A recent example of this is the 1965 convention of the settlement of
investment of disputes between states and nationals of other states.

vii. Enquiry

It is also a method which is often resorted to for the settlement of disputes. It may be
noted that it is not an independent method and is often used along with other methods. The
main objective of the enquiry is to make investigation of the relevant matters.

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viii. Settlement of International Disputes under the Auspices of U.N.O

Following are some of the provisions for the settlement of international disputes
under the UN charter;

1. It is one of the purposes of UNO that the state members should settle their
disputes through peaceful means.
2. The General Assembly of the United Nations may make recommendations for the
peaceful settlement of international disputes.
3. From article 33 to 38, of chapter six, of the charter make the provisions for the
peaceful settlement of disputes. In accordance with these provisions if there is a
likelihood of danger to international peace and security, then the states should
resolve their disputes through any peaceful method. In this connection, the
Security Council may also make recommendations in regard to the settlement of
disputes through peaceful means.

Compulsive or Coercive means of Settlement of International Disputes:

If international disputes are not resolved through peaceful means then the states resort
to compulsive or coercive means, which are as follows;

1. Retorsion

When a state behaves in a discourteous manner with another state, the international
law confers right upon the state affected to resort to Retorsion. The word Retorsion means
“retaliation”. But the affected state can take only those means or measures as Retorsion
which is permitted under international law. For example, in Retorsion, diplomatic relation
may be ended, privileges of diplomatic agents may be withdrawn and economic facilities
may be stopped.

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2. Reprisal

Yet another compulsive means of settlement of international dispute is reprisal.

According to Starke, reprisal connotes coercive measures adopted by one state against
another for the purpose of setting some disputes.

A leading case on reprisal is the Naulia incident. In this case, the tribunal laid down
the following principles:

1) Reprisals are illegal unless they are bases upon a previous act contrary to international
law.
2) There must be a certain proportion between the offence and the reprisals as a
necessary condition for the legitimacy of the latter.
3) Reprisals are only legitimate when they have been preceded by an unsuccessful
demand of redress. In fact, the employment of force is only justified by necessity.
4) Recent example may be the Israeli bombarding on certain areas of Lebanon from
where the Arab freedom fighter operated attacks from time to time in different parts
of the territory of Israel.

Difference between Retorsion and Reprisal

In Retorsion, only that action can be taken which is permitted under international law.
In reprisal, those action can also be taken which might otherwise be illegal but are allowed as
reprisal in certain special circumstances.

3. Embargo

Embargo is yet another compulsive method for settlement of international dispute. It

is a type of reprisal. By embargo we mean that if a state violates international law or commits
some international crime than the affected state becomes entitled to create obstruction in the
transport of its ships which are within the territory of affected state.

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4. Pacific Blockade

Pacific blockage is also a compulsive means of settlement of international dispute.

Through pacific the ingress and egress of the ports of the states are blockaded so that the
ships of other states may not reach those ports and the shop of the blockaded state may not
go out of the ports.

However there is a distinction between blockade and pacific blockade. Blockade is

what which is often resorted to during war. Pacific blockade is a blockade which is used in
peace time. It is resorted to as a reprisal. However, according to modern international law,
this mean cannot be used if it is likely to endanger international peace and security. United
Nations may itself use blockade as a mean to take collective measures under article 42. A
recent example of peaceful blockade is that of the blockade of Cuba by America in 1962.

5. Intervention

A separate chapter is devoted to the rules of international law relating to intervention

settlement of international disputes through intervention which is prohibited in principle but
is permitted under certain exceptional circumstances.

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Topic# 13: Use of Force/Intervention

Outline

❖ What is Intervention
❖ Background of Intervention
❖ UNSC Setup
❖ Ground for Intervention
o Protection of Civilians and Peace Keepers
o Self Defense
o Humanitarian Intervention
o Collective Self Defense

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What is Intervention?

Oppenheim has defined intervention in the following words.

“Intervention is a dictatorial interference by a state in the affairs of another state for the
purpose of maintaining or altering the actual condition of things”.

In principle, international law prohibits intervention but as pointed out by Hans

Kelsen, international law does not prohibit intervention in all circumstances. Principle of
non-intervention propounded under the charter under article 2(7) is applicable to the United
Nations and not to the states. In fact, the principle of intervention by states has been
propounded under article 2(4). It says all members shall refrain in their international relations
from the threat or use of force, against the territorial integrity or political independence of
any state. This principle has been re-affirmed by the general assembly through its resolution
1231(xx) of December, 1965.

No state has a right to intervene directly or indirectly for any reason whatever, in the
internal or external affairs of another state. Intervention was also the main subject of Panama
Charter held in March, 1973. Governments of states have accepted this principle but so far as
real practice is concerned, this principle is not followed by the states. In 1970, General
Assembly unanimously adopted a resolution entitled “Declaration on principles of
international law concerning friendly relations and co-operation among states in
accordance with the charter of U.N”.

Brief History

First of all, the principle of non-intervention was emerged in League of Nations.

Article 15 of the covenant of League of Nations was to a great extent similar to article 2(7) of
the United Nations charter. After that Kellogg-Briand pact was signed in which the signatory
countries decided that hence forth they will settle their disputes by peaceful means.
Unfortunately Second World War started in 1939 and these both frameworks were discarded.
Later on, another international organization (United Nations) was established in 1945.

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Article 2(3) and 2(4) of UN charter provides that;

o Use of force is allowed provided that it is used in a manner consistent with

human rights and IHL.
o States may send its forces to other states to help restore order.

United Nations Security Council Set-up

Chapter 6 of UNSC provides economic sanctions against a state violating

international law. Chapter 7 of UNSC talks about “all possible means” hinting that you can
go for military measure as well. Article# 42 of the UN charter authorizes the states to use
force when it considers that other measures would be inadequate or have proved to be
inadequate. This article has been applied many times. Iraq and Kuwait war case can be cited
here. Iraq invaded Kuwait in 1990. A resolution was passed in UNSC (resolution#678)
which gave a deadline to Iraq to withdraw its forces but Iraq refused. Later on, UNSC
deployed army of “coalition of the willing” in Iraq to restore peace.

Case Study: Invasion of Iraq in 2003

In this case Bush used doctrine of pre-emptive strike. (It means a surprise attack that
is launched against a state in order to prevent it from doing it to you).

UNSC also passed a resolution 940 in 1994 to restore democracy in Haiti. Aristide
became the 1st democratic President of Haiti in 1996 after that successful venture.

Grounds used for Intervention

The following grounds are used for intervention.

✓ Protection of Civilians and Peace Keepers

This ground is used for intervention to protect the civilians, their property and the
peace keepers in a state which is in condition of war. Example is the case of conflict between
Hutus and Tutus in 1994. At that time UN Secretary General Dek Hemarjkold gave an idea
of UN peace keeping force. “Blue Beret Force” was deployed there. This force is usually

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deployed in a post conflict situation to maintain peace and is not provided with heavy
weapons.

✓ Self Defense

Self defense has been a valid ground of intervention for a long time. On the ground of
self defense a state may intervene in the affairs of another state. The United Nations charter
enshrines the principle of self defense in article 51. It provides that;

“Nothing in the present charter shall impair the inherent right of individuals or collective
self defense if an armed attack occurs against a UN member, until UNSC has taken
necessary steps to restore peace”.

Article 51 is subject to following conditions:

o There should be an armed attack

o The right exists until security council has taken necessary action
o It should be reported to the security council
o This right shall not affect the responsibility of the Security Council for the
maintenance of peace and security
o The right is not available against a non-member of the United Nations.

So intervention on the basis of self –preservation is not justified because self defense
in permitted only when an armed attack occurs. Self defense is done when it becomes
necessary i.e. in response to an armed attack on territory, ships, aircrafts, embassies,
consulates or nationals. In response a reasonable and proportionate action should be taken.
Also it should be limited to immediate purpose.

✓ Humanitarian Intervention

Intervention is also permitted on humanitarian grounds. When human rights are

openly violated in a state and the people are ruthlessly persecuted, UNSC authorizes the
states to intervene in the affairs of that particular state. Intervention is done in order to check
such persecution and violations of human rights.

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Parameters of Humanitarian Intervention

❖ There must be compelling and urgent situation of extreme humanitarian.

❖ The state directly involved must either not be willing or able to deal with it.
❖ There is no alternative.
❖ The action must be limited in scope and time to what is necessary to relieve the
distress.

Example

England, France and Russia jointly intervened in the conflict of Greece and turkey in
1827 in order to check the violation of human rights.

✓ Collective Self Defense

Under the UN charter collective intervention can be made to check an aggression on

the breach of international peace and security. Article 5 of the NATO charter, which is also
known as one-for-all and all-for-one provides for collective self defense. According to this
article;

“Armed attack against one member is an attack against all and sets in motion the
possibility of collective-self-defense”.

Warsaw Pact was also concluded for mutual defense between Soviet Union and
Eastern Europe. This was a treaty for friendship, cooperation and mutual assistance, more
commonly for defense purpose.

Also according to a UN resolution of 1960, when any particular territory has been
illegally occupied, the use of force will be justified. Example is the case of Malvina Islands
between Argentina and Britain.

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Topic# 14: State Jurisdiction

Outline

✓ Territorial Sovereignty
✓ Exercise of Jurisdiction and Basis of Jurisdiction
✓ Subjective and Objective Territorial Principle
✓ Some exceptions of the Exercise of Jurisdiction
o Diplomatic Agents
o Foreign Embassies
o Foreign Sovereigns
o Public Property of Foreign Sovereign
o International Organizations
o Extradition Treaties
o Foreign Troops
✓ Exercise of Jurisdiction in case of Collision in High Sea
o Case study of S.S. LOTUS
✓ Criminal Jurisdiction in International Law
✓ Criminal Jurisdiction of Coastal State in Territorial Sea
✓ State Jurisdiction according to Universal Principle

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Territorial Sovereignty

One of the essential elements of statehood is territorial sovereignty. Territorial

sovereignty denotes that the state exercises sovereignty over a definite territory over which it
is entitled to enact laws. It has the ownership over this territory to the exclusion of others. It
can enact binding laws for the inhabitants living within this territory and in respect of their
property. According to Max Huber, territorial sovereignty means independence over a
definite territory to the exclusion of other states. In this territory a state performs its
functions. According to Starke, ‘territorial sovereignty’ signifies that within this territorial
domain jurisdiction is exercised by the state over persons and property to the exclusion of
other states.

State exercises territorial sovereignty over all those areas which are within its
territory. It comprises not only lands but also waters, rivers, maritime be its air space etc.

Distinction between Exercise of Jurisdiction and Basis of Jurisdiction

In general, every state has exclusive jurisdiction within its own territory, but this
jurisdiction is not absolute, because it is subject to certain limitations imposed by
international law. Thus in practice it is not always necessary that a state may exercise
jurisdiction in its territory; on the other hand, there may be circumstances, in which a state
may exercise jurisdiction even outside its territory. Thus there is a distinction between the
exercise of jurisdiction and basis of jurisdiction. J.E.S. has explained this with the help of
following illustration. An Englishman and a German murdered a French man and thereafter
ran away to England. So long as they were in France, they could be arrested and tried by
French courts for committing the murder in France. If they come to England, the English
courts can try the Englishman but they cannot try the German because they have no basis for
jurisdiction as English courts cannot try a foreigner for having committed a murder in some
foreign state.

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Other Illustration

I. A French armed public ship flying the flag of France was in the British territorial
waters when M, the cabin boy of the ship, committed the offense of murder by
shooting dead D, the captain of the ship. Both M and D were British nationals serving
at that time as members of the officer crew of the French cuiser. Extradition
proceedings instituted by French government failed and M, who had been kept under
arrest, was released but arrested immediately for the murder committed within British
territorial waters.
II. Chung chi Cheung was a British citizen, and was a cabin boy in a Chinese armed
ship. On January, 11, 1937, when the said ship reached the territorial waters of Hong
Kong, Chung chi cheung shot dead the captain of the ship and injured the acting chief
officer of the ship. Even in wounded condition, the acting chief officer ordered the
ship to be taken into the territorial waters of Hong Kong. When the ship reached
Hong Kong, he called the police and got the cabin boy arrested. The Chinese
authorities started the proceedings for the extradition of the accused but and the
accused was released. Soon after, he was re-arrested and tried in the court of Hong
Kong.

Subjective and Objective Territorial Principle

This is regarded as the technical extension of the territorial principles. According to

this principle, a state may claim jurisdiction over crimes commenced within its territory but
completed or consummated outside its territory. The state where crime commenced or was
initiated may have jurisdiction over such preparatory act. This is provided, for example,
under the Geneva Convention for the Suppression of Counterfeiting of Currency (1929) and
the convention for the suppression of the illicit drug traffic 1936.

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Objective Territorial Principle

According to this principle, a state gets jurisdiction over the crime, if any, of the
constituent elements of the crime is consummated in its territory. The act must have
produced some harmful effect within or on territory of the state.

Example

K, a British subject, fires across the channel and kills a Frenchman on the shore of
France. In this case British has jurisdiction over criminal K because K is a British subject and
the crime is committed within the territory of Britain. France can also claim jurisdiction
because though the crime was initiated in Britain, it was completed or consummated in the
French territory. So if K goes to France, he can be apprehended and tried for the murder.

Some Exceptions of the Exercise of Jurisdiction

1. Diplomatic Agents

Diplomatic agents enjoy certain immunities and privileges. They are immune from
the jurisdiction of the civil and criminal courts of the receiving state.

2. Foreign Embassies

Foreign embassies are often considered to be outside the jurisdiction of the state in
which they are situated. Embassies enjoy certain immunities because of the special functions
performed by the diplomatic agents.

3. Foreign Sovereigns

Foreign sovereigns are also treated to be outside the jurisdiction of other states and
possess many privileges and immunities. The principle of immunity of foreign sovereigns
was developed in the early years of the nineteenth century. According to this principle, vast
immunities and exemptions are granted to foreign sovereigns and foreign states.

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Case Study: In Mighel vs. Sultan of Johore case, the Sultan of Johore, during his stay in
England, promised to marry the plaintiff. When the said promise was not fulfilled, the
plaintiff filed a case for the breach of the promise. The Sultan of Johore contented that he
was a sovereign of a foreign state who had not submitted to the jurisdiction of the court and
as such court had no jurisdiction over him. The court accepted the contention and decided in
his favor.

4. Immunity in respect of Public Property of Foreign Sovereign State

Like the person foreign sovereign, the property of the sovereign or the public property
of the state also receives certain immunities and exemptions from the exercise of jurisdiction.
In some countries, distinction is made between sovereign and commercial acts. For example,
in America, a foreign sovereign is not exempted when engaged in commercial acts and
commercial functions. According to Prof. W. Friedman, following views are prevalent:

a) All that property which is owned by a state is entitled to immunity. This view is
followed in England.
b) According to the second view, this immunity is not absolute and has certain
limitations. It depends upon the type of act. But it is difficult to determine
whether a particular act is a sovereign or not.
c) According to the third view, immunity depends upon the nature of the function. In
accordance with this rule, those ships which are owned by the state and perform
commercial functions are treated equally to private ships during peace times.

5. International Organizations

International organizations also enjoy certain immunities and privileges from the
jurisdiction of the state in which they are situated. For example, the staff of United Nations
International Labour Organization, etc. enjoys several privileges and immunities.

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6. Extradition Treaties

Extradition treaties enable the states to exercise jurisdiction outside their territory.
These treaties enable them to apply for the extradition of an accused that has fled to some
other country after committing a crime.

7. Foreign Troops

A sovereign may cede a portion of his territorial jurisdiction where he allows the
troops of a foreign prince to pass through his dominions. The grant of free passage, therefore,
implies a waiver of all jurisdictions over the troops during their passage, and permits the
foreign general to use that discipline, and to inflict those punishments which the government
of his army may require.

Exercise of Jurisdiction in Case of Collision of High Sea

In case of collisions of two ships in the high sea, jurisdiction is ordinarily exercised
by the state whose flag flies on the ship. However, on the basis of extra-territoriality that
state which has been affected by the said collision may also exercise jurisdiction.

Example: Case Study of S.S Lotus

The Turkish (Bozkourt) ship collided with the French ship SS Lotus. In consequence
of this collision certain Turkish nationals died. When the SS Lotus ship reached Turkish port,
Constantinople, Turkish government arrested a French national and some officers and started
criminal proceedings against them. The French government lodged strong protest against it
and so the matter was referred to permanent court of international justice. The court
propounded the following principle:

1. Those states which subscribe to the theory of the extra-territoriality of criminal

jurisdiction admit that offence will be deemed to have been committed within their
territory if it effects falls upon their territory. In the view of the court there is no such
rule of international law as may prohibit the Turkish government from prosecuting
and punishing the French national and the officers of the board of the ship, SS Lotus.

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2. According to the court, in collision cases, in the open sea, there is no rule of
international law which provides that only the state whose flag flies on the ship can
exercise jurisdiction over such matters.

Criminal Jurisdiction in International Law

There are several views prevalent in connection with the criminal jurisdiction in
international law. Following are the three main views;

1. According to the first view, each state can exercise criminal jurisdiction within its
own territory. This theory is popularly known as the theory of territoriality of criminal
jurisdiction. This theory is supported by Great Britain, America and so other states.
2. The second view is also known as the theory of territoriality but it admits certain
exceptions to this general theory. France and Germany etc are its chief supporters.
According to them, a state may exercise criminal jurisdiction even outside its territory
on the basis of the national security and on economic ground.
3. The third theory is popularly known as the theory of extraterritoriality. Turkey, Italy,
etc, are its chief supporters. According to this theory crime is a social evil and it is in
the interest of whole international community to ensure that the criminals get due
punishment.

Criminal Jurisdiction of the Coastal state in the Territorial Sea

The sovereignty of coastal state also extends to its territorial sea. This is, however,
subject to the condition that ships of all states enjoy the right of innocent passage through the
territorial sea. So far merchant ships are concerned, article 19 of the Geneva Convention on
territorial sea and the contiguous zone, 1958, provides that the criminal jurisdiction of coastal
state should not be exercised on board of a foreign ship passing through the territorial sea to
arrest any person or to conduct any investigation in connection with any crime committed on
board of the ship during its passage, save only in the following cases.

a) If the consequences of the crime extend to the coastal state.

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b) If the crime is of a kind to disturb the peace of the country or the good order of the
territorial sea.
c) If the assistance of the local authorities has been requested by the captain of the ship
or by the consul of the country whose flag the ship flies.
d) If it is necessary for the suppression of illicit traffic in narcotic drugs.

Article#14

“Passage is innocent so long as it is not prejudicial to the good order, peace or

security of the coastal state”.

Article#15

“It is the duty of coastal state not to hamper innocent passage through the territorial
waters”.

Article#16

“It confers a right on the coastal state to take necessary steps in the territorial sea to
prevent passage which is not innocent”.

Furthermore, the coastal state is required to give appropriate publicity if there is any
danger to navigation of which it has knowledge within its territorial sea.

State Jurisdiction according to Universal Principle

As pointed out by Starke, “An offence subject to universal jurisdiction is one which
comes under the jurisdiction of all states no matter wherever it is committed. It involves an
offence which is contrary to the interest of international community. It is treated as a delict
jure gentium and all the states are entitled to apprehend and punish the offenders. Clearly the
purpose of conceding universal jurisdiction is to ensure that no such offence goes
unpunished. Further, there are probably today only two clear cut cases of universal
jurisdiction, namely the crime of piracy jure Gentium and war crimes. The principle of

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universality of war crimes was affirmed by the Geneva conventions of 1949 relation to
prisoners of war, protection of civilians and sick and wounded persons etc.

Case Study: Adolf Eichman was Minister of Death in the cabinet of Adolf Hitler. After
World War II, Nazi war criminal Adolf Eichmann fled from Austria and made his way to
Argentina where he lived under the name Ricardo Klement. In May 1960, Israeli Security
Service agents seized Eichmann in Argentina and took him to Jerusalem for trial in an Israeli
court. Even though when he committed the crimes, Israel did not even exist on the earth, still
he was tried in Israeli courts and was killed in 1962 on the basis of Universal Principle of
state jurisdiction.

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Topic# 15: State Responsibility

Outline

❖ Meaning of the term “State Responsibility”

❖ UN International Law Commission on State Responsibility
❖ Wrongful Act
❖ Original and Vicarious Responsibility
❖ State Responsibility in Different Fields
o International Delinquency
o State Responsibility for Injury to Aliens
o State Responsibility for the Acts of Governmental Organs
o State Responsibility for Contracts with Foreigners
o State Responsibility for the Breach of Treaty
o State Responsibility in Respect of Expropriation of Foreign Property
❖ Reparation for Injuries Suffered in the Service of UN

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Meaning of the term

Often it is said that the sovereign has no responsibilities under law. This statement is
true only in respect of the subjects of the sovereign because a state may change its law at its
will and may thus bring about changes in its obligations. The position is, however, different
in respect of the obligations towards other nations. In that respect, obligation of the state is
that of an international person. A state has certain obligations under international law. “The
state responsibility concerning international duties is, therefore, a legal responsibility, for
a state cannot abolish or create international law in the same way that it can abolish or
create municipal law”. Thus, “the rules of international law as to state responsibility
concern the circumstances in which and the principles whereby, the injured state
becomes entitled to redress for the damage suffered”.

In the Chorzow Factory (indemnity) case, the permanent court of international justice
said, “It is a principle of international law and even a general conception of law that any
breach of an engagement involves an obligation to make reparation. In Corfu channel case,
the ICJ held Albania responsible for the damage for the explosions which occurred and
observed; “These grave omissions involve the international responsibility of Albania and
there is a duty upon Albania to pay compensation to the United Kingdom”. As pointed out
by Starke, “the law of state responsibility is still in evolution and may possibly advance to a
stage where states are fixed also with responsibility for breaches of international law and
international crimes.

State responsibility during the wars has been generally accepted in article 3 of Hague
convention, 1907. According to it, if a belligerent state violates rules of war, it shall be
responsible for the acts committed by persons of its armed forces.

UN International Law Commission on State Responsibility

A commission was established by UN with an object to codify rules governing state

responsibility. The general plan for the draft on state responsibility consisted three parts;

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Part – I, Defined the ground and circumstances under which a state may be held to have
committed an internationally wrongful act which, as such, is a source of international
responsibility.

Part – II, Deals with the content, forms and degrees of international responsibility, that is to
say the determination of consequences an internationally wrongful act of state may have
international law.

Part – III, Is concerning the settlement of disputes and the implementation.

Wrongful Act

a) An act of a state which constitutes a breach of an international obligation, regardless

of the subject-matter of the obligation breached.
b) An internationally wrongful act is an act which results from the breach by a state of
an international obligation, so essential for the protection of fundamental interests of
the international community that its breach is considered as a crime by that
community as a whole, constitute an international crime.
c) On the basis of rules of international law in force, an international crime may result
from;
i. A serious breach of international obligation important for the maintenance of
international peace and security.
ii. A serious breach of international obligation important for safeguarding the
right of self-determination of people.
iii. A serious breach on a wide scale of an international obligation essential for
safeguarding the human being, such as, slavery, genocide.
iv. A serious breach of an international obligation of importance for safeguarding
the preservation of human environment.

Original and Vicarious Responsibility

The original responsibility of the state is for the works of its government and the
vicarious responsibilities are for its citizens and the work done by its agents. When the

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citizens of a state harm other states through their acts then the question of vicarious
responsibility of state arises. In such a situation it becomes the duty of the state concerned to
punish the guilty or accused and compel him to pay compensation.

State responsibilities in different fields:

a. International Delinquency

As pointed out by Prof. Oppenheim, “an international delinquency is any injury to

another state committed by the head or government of a state in violation of an international
legal duty”. Equalant to acts of the head and government are acts of officials or other
individuals commanded or authorized by the head or government. The comprehensive notion
of an international delinquency ranges from ordinary breaches of treaties obligations,
involving not more pecuniary compensation, to violations of international law amounting to
a criminal act in the generally accepted meaning of the term.

Example: Reference may be made here to Youmans case. In this case, the mayor of the town
(in Mexico) ordered a lieutenant of the state forces to suppress riots and attacks against
certain American citizens. Instead of dispersing the rioters, the troops did just the reverse.
They started firing on the house in which the American had taken the refuge. In the process,
one American was killed. The other two Americans were forced to leave the house and were
killed by the troops and the rioters. The Mexican government was held liable for the
wrongful acts of the troops.

b. State Responsibility for Injury to Aliens

Under international law it is generally agreed that aliens living in a state should also
be conferred upon the same rights which are given to the citizens. It is the responsibility of a
state to protect the rights of their citizen. State responsibility towards aliens may be of
following types;

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I. State Responsibility for the Acts of Individuals

If the citizens of a state cause some harm or damage to an alien in that state, the alien
gets the right to file the suit for compensation according to law of that state. Thus in such a
situation the state tribunals protect the rights of aliens. It may be noted that the decision of
the courts are binding upon the aliens in the same way as they are binding upon the citizens
of the state. But if the decision of a state tribunal is arbitrary and against justice, the alien
person has remedy to approach his home state to settle the matter through political means
and ensure that the matter is decided in accordance with the principles of international law.

II. State responsibility for the Acts of Mob-violence

State may be held responsible for mob-violence if it had not made due diligence to
prevent it. Jurists often express the view that there is no state responsibility in respect of
mob-violence. But this view is not correct. Some countries such as England and America do
not support this view. If the alien person is some officer of foreign country then the state
responsibility is further increased.

Reparation for Injuries suffered in the Service of UN

Count Bernadotte along with a French observer was appointed by UNSC to mediate
between Arabs and Jews in Palestine. On September, 17, 1948, when he was in that area of
Jerusalem which was under the occupation of Israel, he along with the French observer was
killed. In this connection, the General Assembly of the United Nations requested, in 1948,
the International Court of Justice to give an advisory opinion as to whether in such matters
the United Nations can claim compensation and damages for the persons appointed under its
service. The ICJ decided that United Nations is an international person and under
international law it has rights and duties and that it can claim damages and compensation for
the injuries or loss suffered by the person working under its service. Secretary General of the
United Nations claimed compensation from the government of Israel for the death of Count
Bernadotte and a French observer. The government of Israel paid the money in the form of
compensation but refused to accept any obligation under law in this connection. In other

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words we may say that although Israel paid the compensation, but it did not accept that it was
its legal responsibility to pay compensation arising out of mob-violence.

III. State responsibility for the acts of Insurgents

So far as the state responsibility for the acts of insurgents is concerned, the general
rule is that it is the responsibility of the states to try to prevent the violent act of
revolutionaries. But there is a controversy that if the states are not able to prevent violent
activities, then whether they will responsible or not?

Calvo Doctrine

The doctrine was propounded by Calvo of Argentina and hence it is called Calvo
doctrine. According to this doctrine, during civil war the state is not responsible for the
losses suffered by the alien persons because if this responsibility is accepted then big nations
will get an excuse to intervene in the independence of weaker states.

State Responsibility for the Acts of Governmental Organs

The state concerned has responsibility for the act performed by its representative or
high officials toward the alien persons. But state responsibility is accepted only to the extent
where the officials concerned have acted out of their powers and jurisdiction. Similarly, state
is also responsible for the acts of its judicial organs.

State Responsibility for Contracts with Foreigners

In this connection the general rule is that if there is a breach of contract entered into a
state with aliens then it does not give rise to any state responsibility. The alien person,
however, has the remedy to avail the local means available to him in the state concerned.
However, if the matter is not resolved to the satisfaction of the alien person, then he may try
to settle it through the medium of his home state. In the words of Fenwick, “In general, the
alien, believing himself to the victim of breach of contract by foreign government, must first
exhaust such local remedies as are to press the claim through the foreign office of his
government.

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State Responsibility for the Breach of Treaty

State responsibility for the breach of international treaty depends upon the provisions
of the treaty. For example is case of I’m alone ship. It was a British ship of Canadian registry
and was sunk by American Coast Guards in the territorial waters of USA for smuggling
alcohol during the time of prohibition.

State Responsibility in Respect of Expropriation of Foreign Property

There is a great controversy in regard to the expropriation of foreign property situated

in a state. In the modern period, significant changes have taken place in this regard. Till the
19th century, if any state expropriated the foreign property, it was considered to be the
violation of international law making the said state liable for the compensation. But in the
modern period, in view of the complete control of states over their economic system and in
consequence of the nationalization of different industries, it has become difficult to recognize
such expropriation as the violation of international law. It may be noted here that the term
‘expropriation’ includes nationalization and confiscation of property. On the basis of
practice, principles and decided cases, expropriation of foreign property may be valid only
where there has been no irregularity or discrimination with the foreigners. For example is
the case of Nationalization of Suez Canal

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Topic#16: Law of Neutrality

Outline

➢ Meaning and Definition of the Term

➢ Development of the Law of Neutrality
➢ Rational basis of Neutrality
➢ Neutrality under the League of Nations
o Two types of War
➢ Neutrality under United Nations Organization
➢ Duties of Neutral States
o Abstention
o Prevention
o Acquiescence
o Restoration
o Reparation
➢ Duties of Belligerent States
o Abstention
o Prevention
o Acquiescence
➢ Rights of Neutral States
➢ End of Neutrality
➢ Kinds of Neutrality
o Perpetual or Permanent Neutrality
o General or Partial Neutrality
o Voluntary Neutrality and Neutrality Based On a Treaty
o Armed Neutrality
o Benevolent Neutrality

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o Perfect and Qualified Neutrality

➢ Neutrality and Neutralization

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Meaning and Definition of the Term

In the words of Professor Oppenheim

“The attitude of impartiality adopted by a third state towards the belligerents and
recognized by belligerent, such attitude creating rights and duties between the impartial
states and belligerents”.

According to Starke

“In its popular sense, neutrality denotes the attitude of a state which is not at war
with belligerents and does not participate in the hostilities. In its technical sense, however, it
is more than an attitude and denotes a legal status of a special nature involving a complex of
rights, duties and privileges at international law, which must be respected by belligerent and
neutral states alike”.

On the basis of the above definitions we may conclude that there are following three
essential elements in neutrality.

1. Attitude of impartiality
2. Recognition of impartiality by belligerent state
3. Creation of rights and duties

Development of the Law of Neutrality

The term neutrality has been derived from a Latin word ‘Neuter’ which means
impartiality. In wider sense, by neutrality we mean an attitude of impartiality adopted by the
states who do not take part in the war.

The law of neutrality was known in India in ancient period. As pointed out by
Professor K.R.R shastry, three different conditions of international law were recognized in
India. They were (1) War, (2) Peace, and (3) Neutrality. Although the law was present but
there were no clear provisions about it. According to modern international law, the law of
neutrality started in middle ages. As pointed out by Professor Schwazenberger;

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“Neutrality as descriptive of the political and legal status of the country not at war with
either of the two belligerents made its appearance in Europe diplomatic correspondence in
the middle ages”.

In eighteenth century, two famous jurists Bynker-Shoeck and Vattel contributed much
to the development of the law of neutrality. It was agreed in that century that the states which
do not take part in war are entitled to remain neutral/impartial and this impartiality may
confer upon them certain rights.

The development of the law of neutrality received a great impetus in the nineteenth
century. Much of the credit for it goes to USA for remaining neutral in the Napoleonic wars.

The systematic development of law of neutrality also owes much to the Civil War of
America. A leading case of this period relating to neutrality is “Alabama Claims
Arbitration, 1872”. In the civil war, Great Britain, being a neutral country, provided
Alabama and other destroyers to Southern states. The court of Arbitration gave its award in
favor of America and ruled that Britain should pay $1, 55, 00,000 US dollars in gold to
America as compensation.

The permanent neutralization of Belgium and Switzerland in Nineteenth century was

also a land mark event. This encouraged the development of law of neutrality. Some rules
relating to the law of neutrality were developed in convention of 1907. But First World War
turned into a total war and the laws of neutrality were openly and flagrantly violated.
America remained neutral in the World War-I up to the year 1917 but later on it was
compelled to take part in the war.

Neutrality is often justified because of the following reasons:

1. It helps to localize the area of war.

2. It discourages the war.
3. In consequence of neutrality, some states are able to keep them away from war,
4. It regularizes international relations.

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Ordinarily above mentioned reasons are said to be rational basis of the law of
neutrality. But the Second World War has clearly established that the first and second
reasons are not the true basis of neutrality. During the Second World War, Norway,
Denmark, Ireland and Belgium were neutral states but the belligerent states in general and
Germany in particular did not respect their neutrality and conquered them. Third basis is not
the concerned basis because America wanted to keep itself away from the First World War,
but has to enter in 1917.

Position of Law of Neutrality under the Covenant of League of Nations

Many jurists have expressed the view that the covenant of League of Nations has put
an end to the old law of neutrality. There could be two types of war under the League of
Nations.

1. War not in disregard of the Covenant of League of Nations

2. War in disregard of the Provisions of Covenant of League of Nations.

First Type of War

1. Members are under obligation to settle their international disputes through arbitration,
judicial decision or inquiry by the council.
2. If the states fail to settle their disputes by these means, even then the states could not
go to war until a period of three months lapsed after award or judicial decision or
inquiry.
3. If all the means are exhausted and the problem is not resolved in that case the member
states can resort to war. The other states are free to remain neutral. That is to say, the
covenant had not completely prohibited war. It simply imposed certain restrictions
upon the member states in respect of their right to resort to war.

Second Type of War

If a state went to war in total disregard of the provisions of covenant of League of

Nations, then such a state could be deemed to be the enemy of the whole of League of

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Nations. Article 16 of the covenant of the League of Nations provides that if any state
resorted to war in violation of the articles 12, 13 and 15, then it was considered to be war
against the whole league. In this type of war, other states of the League of Nations cannot
remain neutral as they have to assist the league in fighting against the enemy state.

Position of Neutrality under the Charter of U.N.O

Some jurists have expressed the view that United Nations charter has put an end to
the old law of neutrality. In the view of these jurists, when a state resorts to war, there can be
only two conditions. He can either be an aggressor or defender. If he is an aggressor then
preventive or enforcement action can be taken against him under the charter. If he is a
defender then he should be assisted by the United Nations. Thus the member states of United
Nations cannot remain neutral. Some relevant provisions in United Nations charter which
have affected the law of neutrality are given below.

1. Article#2(5)

“Article 2(5) provides that all members shall give the United Nations every assistance
in any action it takes in accordance with the present charter and shall refrain from giving
assistance to any state against which the United Nations is taking preventive or enforcement
action”.

2. Article#25

“Article 25 provides that the members of United Nations agree to accept and carry
out the decisions of the Security Council in accordance with the present charter. That is to
say, if the Security Council decides to take any action, the member states have no option but
to carry out this decision. Under such circumstances they cannot remain neutral”.

3. Article#41, 42 and 43

“Articles 41, 42 and 43 are related to the enforcement action conferred upon the
Security Council in respect of maintenance of peace and security. Under these articles the

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Security Council has been empowered to ask other states to assist it. These provisions are in
face detrimental for the observance of the rules of old law of neutrality”.

4. Article#49

“Article 49 provides that the members of the United Nations shall join in affording
mutual assistance in carrying out the measures decided upon by the Security Council. It has
also affected the old law of neutrality”.

5. Article#51

“Article 51 of the charter confers upon the member states of the United Nations the
right of individual or collective self defence if an armed attack occurs against a member of
the United Nations”.

Some jurists are of the view that although the provisions of the charter have greatly
affected the old law of neutrality they have not completely abolished it.

Fenwick has also expressed the view that if in respect of certain matters relating to
peace and security, the Security Council is not able to take action then in such a situation
other member states of the United Nations can remain neutral.

Duties of the Neutral States

Ordinarily following are the duties of neutral states:

a. Abstention

It is the duty of the neutral state to abstain from rendering direct or indirect help to the
belligerent states. For example, the neutral states cannot help either belligerent through war
forces or cannot guarantee loans to be given to them.

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b. Prevention

It is the duty of the neutral states to prevent certain things within their territory. For
example, it is their duty to ensure that persons are not recruited for the war forces of
belligerent states within their territory.

c. Acquiescence

It is also the duty of the neutral states to give their acquiescence in certain matters.
For example, they should give their acquiescence when a ship using the flag of their states is
seized for carrying contraband. If they oppose such seizure, it will be deemed to be violation
of the law of neutrality on their part.

d. Restoration

It is the duty of the state not to allow any act connected with the war within their
territory and in case if any such act takes place it is their duty to restore it. That is to say, if
either of the belligerent seizes enemy ship within the territory of the neutral state then it
becomes the duty of the neutral state to get such ship restored to the other belligerent state.

e. Reparation

If a neutral state contravenes the above mentioned duties, it may be held liable to pay
compensation for the same. A leading case on the point is “Alabama Claims Arbitration,
1872”.

• Article 5 of Hague Convention

It provides that belligerents are forbidden to use neutral ports and waters as a base of
naval operations against their adversaries.

Duties of Belligerent States

Following are the duties of belligerent states:

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a) Abstention

It is the duty of the belligerents to abstain from committing any act of war within the
territory of neutral states.

b) Prevention

It is their duty to prevent bad treatment toward the ambassadors, citizens etc of the
neutral states.

c) Acquiescence

Like the neutral states, belligerent states are under the duty to give their acquiescence
in respect of certain matters. For example, if the neutral state gives asylum or refuge to some
members of its forces, it is the duty of other belligerent states not to oppose it.

Rights of Neutral States

1. The first right of neutral state is that no war like act should be committed in their
territory.
2. Their cable lines in seas, etc. should not be damaged as far as possible.
3. The belligerent states should not use their territory for making preparation for war.
4. They are also entitled to make some rules for the protection of their territory and to
make belligerent states observe them.
5. Neutral states also posses the right that if their neutrality is violated then they may get
compensation for the same.

Commencement of Neutrality

Immediately after the start of war, neutral states should declare their neutrality. It is
only after the start of war, states can determine as to whether they will remain neutral or not.
Hence, knowledge of start of war is necessary for the declaration of war. Article 2 of Hague
convention III provides that the belligerent states should intimate the neutral states about the
start of war. The rights and duties begin only after such intimation.

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End of Neutrality

Neutrality comes to an end in one of the following ways;

a) At the end of the war

b) When the neutral state starts war with one of the belligerent states
c) When any belligerent state starts war with the neutral state.

The rights and duties continue till a state remains neutral. They end as soon as the
neutral state ends neutrality.

Kind of Neutrality

Neutrality may be of following kinds:

i. Perpetual or Permanent Neutrality

When a state is neutralized through a special treaty, then such neutrality is called as
perpetual or permanent neutrality.

ii. General or Partial Neutrality

When only a part of a state is neutralized, it is called partial neutrality. On the other
hand, when the whole state adopts the attitude and policy of neutrality, it is called general
neutrality.

iii. Voluntary Neutrality and Neutrality based on some Treaty

Voluntary neutrality is neutrality which is declared by a state voluntarily without

being bound by a treaty. On the other hand, a state may become neutral being bound by any
general or special or special treaty.

iv. Armed Neutrality

When a state uses armed forces for the defence of its neutrality, it is called armed
neutrality.

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v. Benevolent Neutrality

When a state, while remaining neutral, favors a belligerent state or otherwise helps it,
it is called benevolent neutrality.

vi. Perfect and Qualified Neutrality

When a state remains completely impartial and does not, directly or indirectly, assist
either of the belligerents, it is called perfect neutrality. But if a state remains neutral
generally but as a result of some provisions of treaties entered into before start of war,
directly or indirectly, assists a belligerent state, then is it called qualified neutrality.

Neutrality and Neutralization

Temporary and Permanent

Individually and by International Treaty

1. Switzerland
2. Austria

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